This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys atThe Law Office of James Montana PLLC,an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice,contact usfor an appointment.
With the 2024 campaign in full swing, we want to provide ARLnow readers with overviews of both candidates’ proposals concerning immigration law and policy.
This week, we’ll review the Trump campaign’s (unofficial) immigration policy platform, as laid out in theProject 2025Presidential Transition Project.We’ll first tell you what they say they’ll do — and then offer our educated guess about whether each candidate can actually deliver on their respective promises. Stay tuned next week for our review of the Biden Administration’s immigration policy platform — that is, of course, assuming that President Biden stays in the race.
First Proposal: Dismantle and Reconstitute the Department of Homeland Security as an Enforcement Agency
The Mandate for Leadership (MFL) starts with a simple proposal: break up DHS and reassemble it. In essence, the MFL envisions a new enforcement-focused agency with the following components (current departments at right, in parentheticals):
- Customs and Border Protection (DHS)
- Immigration and Customs Enforcement (DHS)
- Office of Refugee Resettlement (Department of Health and Human Services)
- Immigration Courts (Department of Justice)
- Office of Immigration Litigation (Department of Justice)
The MFL suggests that the following agencies currently housed within DHS be split and reallocated as follows:
- FEMA goes to the Department of the Interior
- The U.S. Coast Guard goes to the Department of Justice or the Department of Defense
- The Secret Service be split between the Department of Justice (protective operations) and the Department of the Treasury (counterfeiting and other financial crimes)
- The TSA will be completely privatized
Congress would have to act for these recommendations to be put into action, so the plausibility of this reorganization depends on the composition of Congress.
We would like to note one item which hasn’t received enough attention: under this reorganization, all government components of the U.S. immigration courts — prosecutors, judges, and appellate litigators — would be subject to the authority of a single Cabinet-level official. This would help the Trump Administration to exert pressure on the immigration courts to serve as implementers of policy, rather than independent adjudicators of law.
Second Proposal: Eliminate T and U Visas
The MFL’s proposal for T and U Visas is simple: eliminate them, because “victimization should not be the basis for an immigration benefit.”
T visas, under the current law, are available for victims of human trafficking; U Visas, under current law, are available to victims of qualifying crimes (generally, serious felonies) who cooperate with law enforcement in the prosecution of the perpetrators.
The MFL proposes that S visas (currently designated for witnesses) be used as a substitute for U and T visas in the most serious cases. This would result in a quantitatively enormous reduction, because, under current law, S visas are restricted to 200 per year in ordinary criminal cases and 50 per year in terrorism-related cases. Under current law, 10,000 U Visas are available annually, and 5,000 T Visas are available annually.
Would this work? Probably yes, in practice. Although both T and U Visas are available as a matter of statute, a new Trump Administration could simply decline to issue them if Congress doesn’t cooperate with legislation.
Third Proposal: Delegate Border Shutdown Authority to the Secretary of Homeland Security
The MFL proposes that, “whenever the Secretary of Homeland Security determines that an actual or anticipated mass migration of aliens en route to or arriving of the coast of the U.S. presents urgent circumstances requiring an immediate federal response,” the Secretary may issue rules without following the ordinary requirements of the Administrative Procedure Act to prevent large numbers of people from crossing the border.
Would this work? Probably not over the long term. The Federal judiciary is generally skeptical of administrative rule-making outside the normal rule-making process. (This is how the Trump Administration’s attempt to repeal DACAwas struck downby the U.S. Supreme Court.)
Fourth Proposal: Tighten Asylum Rules and Impose a Fee on Asylum Applications
The MFL proposes a large number of changes to current asylum law and practice, including eliminating the Particular Social Group ground for asylum, raising the credible fear standard to a much higher level, imposing a fee on all asylum applications, and codifying the previous Trump administration’s asylum bars and third-country transit rules.
Would these work? It’s hard to say, because each one is subject to separate potential legal challenges. In general, the proposed changes are incompatible with current U.S. law and treaty obligations, so these changes would, in the main, require an act of Congress.
There’s more — much more! — in the MFL.We encourage you to read for yourselvesand make your own judgment about the immigration policies of a potential Trump Administration.
As always, we are grateful for your questions and comments, and will do our best to respond.
