By: Rishi Oza, Partner
Presidents are typically measured by their accomplishments in their first 100 days in office. Mr. Trump’s second term has been anything but methodical – quite contrarily, Mr. Trump’s promise to employ a “shock and awe” strategy, as been jaw-dropping in its flurry of orders, but tepid in terms of accomplishments. Admittedly, 60 days into any new president’s term is hardly a fair barometer for judging accomplishments, but Mr. Trump’s campaign boasts are now running headfirst into the challenges of actual governing. To quote the old adage: talk is cheap and Mr. Trump’s desire to remake America’s immigration system will need to register less shock value and more in terms of governance competency.
Case and point is the US Department of Homeland Security’s recent announcement of its enforcement of Alien Registration Requirements. The ARR have been mandated under Immigration and Nationality Act for over three decades but largely unenforced, due largely to the logistical headache of tracking such vast sums of information. Much media attention has been placed on this little used statutory requirement that requires foreign nationals register with DHS while in the United States; failure to do so may result in criminal and civil penalties, which the Department of Justice recently announced would be a misdemeanor offense. While DHS was successful in raising the collective blood pressure within immigrant communities, the agency failed to advise stakeholders on how foreign nationals were actually expected to go about doing so, only stating that further instructions would be forthcoming. As with all governmental programs, the details associated with any mandate will be an insight as to the seriousness of the instruction; without a mechanism by which individuals can register, the DHS press release and the hoopla surrounding it are just that: hoopla.
Presently, even if a foreign national wanted to comply with this statutory mandate, DHS provides such individuals with no way of actually doing so. Foreign nationals cannot simply walk into a local DHS office and request to be fingerprinted (quite frankly, getting fingerprints rescheduled for current applicants for immigration benefit is hard enough). DHS has not issued any forms or guidance on how to register an address, provide notice or communicate with the government in the manner that the administration wishes.
In practice, US Citizenship and Immigration Services (USCIS), a subagency within DHS, often fails to update addresses for individuals with active and going cases. Inundating the agency with hundreds of thousands of additional address locations without providing the already backlogged agency with additional funding to process this information is curious, given that the agency already takes almost 15 months to approve a spousal visa petition, nearly three years to adjudicate certain waiver filings and a mind-boggling five years to approve investor visa petitions. Are we sure that this agency can handle more work?
From a practical perspective, USCIS will surely have a database of information with the names, addresses and phone numbers of foreign nationals in the United States. However, who reasonably assumes that individuals in the US unlawfully are going voluntarily to register under such a system? Most individuals in the US without status avoid interacting with government at all times and so menacing criminal and civil penalties (i.e. 30 days of jail time and a $200 fine) is an empty threat when compared with the possible consequences for registration (i.e deportation). Migrant populations, particularly the undocumented, are forced to operate in the margins of society, unable to obtain Social Security numbers or drivers licenses. The expectation that these populations will suddenly invite attention, particularly in an enforcement-heavy environment, is folly.
Mr. Trump’s push for heightened removals has been coupled with some questionable government employment practices. As has been well documented, Mr. Trump has taken an axe to the federal labor force, terminating the employment of thousands of federal workers, including immigration judges. Immigration Judges, unlike federal court judges, are employees of the US Department of Justice and therefore serve at the pleasure of the President and the Attorney General. What makes the Administration’s decision to terminate IJs curious is the current backlog of pending immigration cases (currently exceeding 3 million cases nationwide) would seemingly require a surge of qualified immigration judges and not a reduction in force. By thinning out the courts, the capacity for the DOJ to address the gargantuan backlog is further pinched, which strikes at the very thing that Mr. Trump wants to see: more deportations. How the government intends on increasing deportations with reduced staffing is an open question that remains unanswered.
Has Mr. Trump done an excellent job of projecting the Administration’s priorities when it comes to the immigration field: the answer is undoubtedly yes. Mr. Trump has long been a master of the media and shaping public opinion through his use of the president’s bully pulpit. However, as indicated above, what the President says versus what the government actually does are often two different things – that big beautiful wall from Trump’s first four-year term remains only partially completed. The President has never been one to shy away from a fight and with his control over the Congress, Mr. Trump can certainly put a stamp on the immigration system writ large. However, mid-term elections are only two short years away and despite continued disillusionment with the Democratic Party, Mr. Trump’s clock is ticking – whether he’ll continue to talk or actually get results remains to be seen.
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