Trump’s Squeeze on Legal Immigration [OPINION]

Coverage of Trump’s immigration policies by the media mostly starts and ends at “the Wall” and the fallout from the refusal of the Trump Administration to allow the government to be re-opened without funding for it.

However, what doesn't get enough coverage in the mainstream media is the Trump Administration's equally combative policies on legal immigration. Particularly, his weaponization of the judiciary and legal processes to curb the flow of legal immigrants entering this country.

During my time as a licensed attorney, I’ve handled cases in the district courts, probate courts, and have done a fair share of administrative hearings. Everyone who has had experience in these processes knows that judiciaries are notoriously slow-moving and backlogged. There are simply too many cases and not enough attorneys or judges to handle them in an expeditious manner. This is especially true in immigration court, where wait times for hearings are often as long as four years and now could be backlogged even further by the government shutdown.

The Marshall Project, a non-profit journalism organization with a primary focus with issues regarding criminal justice and immigration, has been covering the goings-on at the border during the Trump Administration throughout his presidency. They've also worked closely with This American Life, a weekly public radio program and podcast that offers intimate prospectives on national stories. What they’ve found were hastily-executed deportations, and unabashed attempts to stymie and disrupt an already inefficient process.

THE CAROUSEL COURTS

One of the very first immigration policies implemented by Trump via executive order was to rush immigration judges from all over the country to detention centers on the southern border. The goal of this order was for these judges to hear and adjudicate immigration cases in a swift and decisive manner and encourage the deportation of migrants at a rapid clip, reinforcing the hardline immigration platform Trump had campaigned on.

Immigration courts, unlike most other tribunals, fall under the control of the U.S. Department of Justice, and thus, the Executive Branch of the U.S. Government. So it is well within the right for the Trump Administration, albeit ill-advisedly, to shuffle judges from their respective benches to whatever immigration courts they see fit.

This action by the Trump Administration created a procedural nightmare for immigration courts and immigrants alike. Continuous cycles of immigration judges, clerks, interpreters, and ICE prosecutors were sent abruptly to dentition facilities for two-week stints. The adverse effects of these policies include but aren't limited to: judges further backlogging their already crowded dockets at their courts back home, the mismanagement and loss of immigration court files, prolonged detentions of immigrants, and most egregiously a marathon of haphazardly scheduled and executed immigration hearings that didn’t allow for the judges to make a fully informed adjudications.

DUE PROCESS EN MASSE

Prior to the Trump Administration, the Federal Government would only prosecute individuals for crossing the border if they had a prior deportation on their record. But under Trump’s “zero tolerance” policy, virtually all individuals caught crossing the border illegally are rounded up, detained, and stuffed into a small courtroom for en masse criminal magistrate hearings, sometimes with up to 80 people at once.

Given the chaotic nature of such a proceeding and the limited number of public defender attorneys and court translators to speak to these individuals before their case, it’s impossible to say that these individuals have been given adequate due process as afforded to them by the U.S. Constitution. They are simply rushed into a guilty plea (a misdemeanor on the first offense, felony on the second offense) and deported back to their home country. The purpose of this program is likely to rubber-stamp a misdemeanor conviction on the records of those individuals processed and deported so that they can move for felony prosecution if the individual is caught crossing the border a second time. This will give proponents of anti-immigration policies a murky statistical basis to say that most or virtually all undocumented immigrants are convicted felons.

What is most egregious is that until a recent action by the federal courts, these expedited conviction factories included those seeking asylum as well, even though the law clearly states asylum seekers have the right to apply "whether or not at a designated port of arrival” under 8 U.S.C. § 1158(a)(1).

H-1B DENIALS AND RFEs

Trump’s immigration crackdown isn’t limited to migrants seeking asylum or illegal border crossings. Those who are are applying through the visa program, and those in the process of entering channels through other legal processes are finding it increasingly difficult under this administration. H-1B visas in particular, which are intended for highly skilled foreign-born professionals (e.g. doctors, engineers, musicians etc.), are being denied increasingly and arbitrarily. According to a study by the National Foundation for American Policy, the third and fourth quarter of FY 2017 saw denial of H1-B visas increase 41 percent. Immigration lawyers familiar with the process cite denials for bizarre reasons never presented to them before, such as the U.S. government feels they will be a burden to the country. Highly-skilled professionals, trained and experienced in a particular vocation, with jobs—these are the people Trump is positing will be a burden to the government.

Even while in the process of applying for a visa or some other form of legal immigration, the Federal Government is using a procedural tactic to intentionally stall the progress of immigration applications through Requests for Evidence (RFE). RFEs are requests by the government to prove something in particular about an applicant's case; once it is submitted, the case cannot move forward until the RFEs have been answered. The requests for RFEs have more than doubled for H1-B visa cases, and nearly tripled overall between the third and fourth quarter of FY 2017.

This has been argued by the Trump Administration as implemented in the interest of being thorough and weeding out frivolous claims for visas. However, immigration attorneys nearly unanimously reject that defense. This is because many of the RFEs request information that has either already been submitted, or information that shouldn't need an RFE.

Examples of this include an RFE to prove the Catholic Archdiocese of San Antonio (the second largest Archdiocese in America) actually exists in the case of a priest looking to immigrate from Mexico, or an RFE for a British man for the English translation of his British birth certificate. The attorneys who represent these individuals see these measures as a deliberate attempt to bog down the visa process and discourage individuals from coming to the U.S. through legal channels of immigration.

“KEEPING US SAFE”

Trump has posited that his crackdown on legal immigration is in the interest of keeping the American people safe from dangerous criminals, and those who would come here to take advantage of the (wholly inadequate) social safety net our country provides to the impoverished. However this claim flies in the face of a few fundamental truths: 1.) the fact that immigrants both documented and undocumented commit crimes at a significantly lower rate than American born citizens; 2.) most immigrants, legal and undocumented work and pay taxes; and 3.) that this administration is essentially exiling foreign-born highly-skilled professionals from entering the U.S. workforce through their stranglehold on the visa process.

Thus, we need to call these immigration policies what they are: mean-spirited tactics with the intended goal of aggressively preserving the racial and ethnic makeup of this country in a manner which make close-minded nativists like Trump more comfortable.

For more extensive coverage of these policies, check out the Marshall Project's coverage of immigration courts in Loredo and McAllen, Texas, and episode 695 of This American Life.

Marcus Ferro is an attorney practicing in New Bedford and a weekly contributor to The Chris McCarthy Show on 1420 WBSM. Contact him at marcusferrolaw@gmail.com. The opinions expressed in this commentary are solely those of the author.