How Trump Could Change U.S. Immigration Policy
With the re-election of Donald Trump to the U.S. presidency, immigration policy will see significant changes. As an immigration lawyer, it’s essential to stay prepared and informed about these potential changes, particularly in areas that may impact our clients' applications, petitions, and general immigration status.
Here’s an overview of potential changes based on Trump’s last term of office, his statements on the campaign trail, and who he’s considering for key immigration cabinet positions:
Increased Immigration Enforcement
Trump will certainly focus on increasing activity by ICE and CBP. Between 2017-2021, Trump placed significant emphasis on enhancing immigration enforcement within the U.S. We should expect a renewed focus on deportation efforts for undocumented immigrants.
Already, Trump has indicated his intent to pick Tom Homan as the border czar. In his first term, Trump nominated Homan to be ICE’s permanent director, although he was never confirmed by the Senate. This time, with more control over Congress, expect Homan to receive whatever legal authority he wants, and to continue Trump’s promised mass deportation of immigrants.
During the Obama and Biden administrations, ICE and the Executive Office for Immigration Review (EOIR), the part of the Justice Department that houses Immigration Judges and issues removal orders, worked somewhat congenially with immigration attorneys to prioritize convicted criminals over noncriminal respondents. However, the Trump administration did everything in its power to strip Immigration Judges and ICE attorneys from their discretionary authority, resulting in an enormous immigration backlog as the government attempted to deport respondents with lawful immigration pathways at the same rates that it tried to deport felons.
Ending Lawful Immigration Programs
During his first term of office, Trump tried repeatedly to kill the Deferred Action for Childhood Arrivals (DACA) program created by President Barack Obama’s administration to protect children brought to the U.S. without lawful status. Expect him to continue on his crusade to destroy the lives of the Dreamers, despite having lost on this issue at the Supreme Court in 2020.
As for Temporary Protected Status (TPS), a long-existent program offering temporary work status and protection from deportation to noncriminal immigrants from select countries who suffered catastrophe, Trump recently told a crowd of supporters that he plans to revoke TPS status for Haiti and potentially other countries.
On November 7, 2024, the Eastern District of Texas (District Court) found that DHS lacks standing to grant parole under the Keeping Families Together (Biden Parole-in-Place) program. In plain language, the Texas Court said that the program was unlawful. Had Kamala Harris been elected president, we might expect her administration to pursue an appeal of this decision; however, with Trump being re-elected, there is almost no likelihood that this program will continue.
Making Legal Immigration More Confusing
In his prior term, Trump sought to curb U Visa protections through a series of byzantine changes to how these visas were processed and by ending long-standing DHS and DOJ policy not to deport respondents with pending U Visa petitions. The U Visa program encourages immigrants who were victims of dangerous crimes to come out from the shadows to cooperate with law enforcement officials against the criminals who hurt them. One example of the strange rules put into place required that all I-918 petitions (the forms used to apply for U Visas) fill in any blank space on the form, even when the blank space should not be used given the prior answers to the petition, and even the petition’s direct instructions. On many other legal immigration forms, the Trump admin expanded the page-length of the forms, adding unnecessary and confusing language and questions, to provide agents a pretext to deny or delay processing. Expect more of this type of Kafka-esque rulemaking from Trump this time around.
Ending Birthright Citizenship
Trump and his circle have repeatedly pushed the idea of ending “birthright citizenship,” which originates from the 14th Amendment to the U.S. Constitution, which states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Although legal scholars are dubious of Trump’s ability to do this, given that he will likely control both houses of Congress and essentially the U.S. Supreme Court, he might be able to make this a reality. If he succeeds, expect his administration to pursue a dramatic campaign of denaturalization of U.S. citizens whose parents lacked lawful status, a program that Trump’s 2018 Justice Department already began.
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