Who Will Tame Immigration Law’s Wild West?

By Andrew Grindstaff, J.D. Class of 2021

Time and again in Clinic lectures—whether from our Professor, our Fellow, or any of the guest speakers—practitioners have placed imploring emphasis on the rapidly-shifting, intensely-complex quagmire that is immigration law.  In just a few short months, I have seen this unfold firsthand in the asylum context:

  • On December 10, 2020—“Human Rights Day”—the Trump Administration’s “Death to Asylum” regulation was finalized, so known because it severely narrowed both the potential pool of persons eligible to claim asylum at the border and the ability of those claiming asylum to succeed in their applications.1
  • From January 11 through January 19, 2021, federal courts across the country blocked the most damaging parts of the Death to Asylum regulation.2
  • On January 20, 2021—Inauguration Day—President Biden signed an executive order halting construction of President Trump’s southern border wall to the south.3
  • On February 18, 2021, the Biden Administration issued guidance to Immigration and Customs Enforcement (“ICE”)—the organization primarily responsible enforcing federal immigration laws—intending to limit deportations and arrests.4
  • On March 18, 2021, the Democrat-controlled House of Representatives passed part of President Biden’s immigration agenda, which, if passed by the Senate, will create a citizenship pathway for, among others, Dreamers—or undocumented persons brought to the United States as children.5

This policy trend is, of course, positive for immigration advocates and immigrants alike.  But importantly, that policy can be altered so drastically in such a short span of time is concerning—what can be given, can easily be taken away.  This is especially true when the executive and legislative branches of the federal government are controlled by the same political party—evidenced simply by the major policy shift before President Biden was inaugurated and after, when both the executive and legislature effectively shifted from Republican to Democrat.6  When the branches are controlled by different parties, chaos can reign in immigration law. Professors Cox & Rodriguez touched on this issue specifically as it relates to immigration, noting that the Supreme Court’s muddied approach to whether regulatory authority is shared between the political branches or delegated from Congress to the President has caused much confusion,7 leaving wide open the possibility of further and heightened confusion for all of the stakeholders in immigration law.

Intellectually—and fiscally, perhaps, for those who make a living in immigration law—such a landscape is exciting.  But is the flexibility and fragility of immigration law a good thing for everyone?  United States-based immigration law practitioners can hardly keep up with the rapidity of shifts in immigration policy—how are immigrants, likely without a command of English,8 expected to stay abreast?  What about undocumented persons living in the U.S. whose lives are impacted directly and measurably by each minutiae policy shift?  My Clinic client, for example, just barely met the cutoff imposed by the “Death to Asylum” regulations back in January—which were enjoined at the eleventh hour.  But what if my client had not found the Clinic?  There are thousands in a similar position who are not so lucky, and that his situation may have turned on luck is unconscionable in a modern, free society.

Should immigration law remain more fixed and promulgated with excruciating clarity?  There are certainly reasons to retain the malleability of immigration law—e.g., national security threats and public safety, the classic deportation bases.9 As the argument goes, threats to “national security”—whatever that means10—are never static, and thus the federal government requires flexibility to address ever-changing risks to the homeland.11 But the indefinable nature of the justification for that flexibility is precisely the problem.  As a 3L, I have been exposed to my fair share of counter-intuitive legal frameworks; but in my short stint with the Immigration Clinic, I have been gobsmacked by the wild west approach to United States immigration law.12 Surely change is possible and hopefully it is imminent—because the costs of malleable laws outweigh the benefits when you drill down to those most intimately affected by them.

[1] Jennie Guilfoyle, Trump’s ‘Death to Asylum’ Rule Will Go into Effect Days Before He Leaves Office, ImmigrationImpact (Dec. 10, 2020), https://immigrationimpact.com/2020/12/10/trump-asylum-rule-2021/.

[2] New Immigration Rules Could Impact Asylum Seekers, ASAP,https://help.asylumadvocacy.org/new-immigration-rules-could-impact-asylum-seekers-in-january-2021/ (last visited Mar. 19, 2021).

[3] Biden’s Muddle on Immigration, Economist (Mar. 20, 2021),https://www.economist.com/leaders/2021/03/20/bidens-muddle-on-immigration.

[4] Joel Rose, Biden Tried to Rein in ICE: New Rules Limit Who Immigration Agents Target for Arrest, NPR (Feb. 18, 2021, 2:20 PM),https://www.npr.org/2021/02/18/969083367/biden-tells-ice-to-chill-new-rules-limit-who-immigration-agents-target-for-arres.

[5] Nicholas Fandos, House Votes to Give Millions of Dreamers and Farmworkers a Path to Citizenship, N.Y. Times (Mar. 18, 2021), https://www.nytimes.com/2021/03/18/us/politics/biden-immigration.html.

[6] The Senate is currently at a 50-50 split between Republicans and Democrats (including the Senators who caucus with Democrats).  Ties in the Senate are broken by the sitting Vice President—Democrat Kamala Harris.

[7] Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 482-83 (2009).

[8] See Abby Budiman, Key Findings About U.S. Immigrants, Pew Rsch. Ctr. (Aug. 20, 2020), https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/.  A Pew Research Center analysis of census data revealed that in 2018, 53% of immigrants in the U.S. “are proficient English speakers.”  Id.  However, immigrants from Canada, Europe, and Oceania (likely either English-speaking or English-teaching countries) appear to inflate this figure.  Cf. id.  For example, from Mexico and Central America, only 34% and 35% of immigrants, respectively, are similarly proficient English speakers. Id.

[9] See Fandos, supra note 5.

[10] See Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573,1577–84 (2011) (noting the different conceptions of the phrase by each federal government branch).

[11] See id. at 1582 & n.46 (deference to the political branches “is appropriate . . . [because of] the reality that efforts to confront terrorist threats occur in an area where information can be difficult to obtain, the impact of certain conduct can be difficult to assess, and conclusions must often be based on informed judgment rather than concrete evidence” (quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 5 (2010))).

[12] See David J. Bier, Why the Legal Immigration System Is Broken: A Short List of Problems, Cato (July 10, 2018, 9:25 AM), https://www.cato.org/blog/why-legal-immigration-system-broken-short-list-problems (a “short” list of twenty-five problems that have plagued the U.S. immigration system).