Immigrant Rights Under Attack

By Phyllis Eckhaus

It’s as bad as you think it is—and maybe worse.

On March 18th the NYU Migration Network sponsored a talk with two leading immigration rights lawyers, calmly and dispassionately entitled “Changes to Immigration Policy Under the Trump Administration: Implications and Consequences.” By contrast to the business-as-usual event moniker, the two described a five alarm fire potentially immolating not only immigrants’ rights but the rule of law.

No Holds Barred
NYU Clinical Law Professor Alina Das, who co-directs the law school’s immigration clinic, asked Omar Jadwat, the director of the American Civil Liberties Union Immigrants’ Rights Project, to compare the first Trump administration to the second. Jadwat described Trump II as “directionally aligned with Trump I but going much harder in every direction.”

Using the example of birthright citizenship, Jadwat observed that on the one hand “it’s completely unconstitutional to try to abrogate birthright citizenship” for children of noncitizens born on U.S. soil, but on the other hand Trump had made a campaign promise to do so.

Typically a president would consider a range of choices, Jadwat noted, ranging from doing nothing, to setting up a commission to study it, to eliminating birthright citizenship “in a circumscribed way”–perhaps for people who already have removal orders or who had been in the United States on very short stay.

But Trump, Jadwat said, went directly for “the last worst option” of seeking totally to eliminate it. And he’s choosing the last worst option “across the board.”

Where the first Trump administration deployed executive agencies, Jadwat suggested that Trump II is seeking to rule by fiat, saying “I can do whatever I want” and issuing proclamations that are “raw assertions of presidential power that override everything else.”

Das observed that in the first Trump administration, the inexperience of cabinet officials combined with the savvy of longtime public servants created a “buffer” against the most extreme “fringe ideas.” But now, she said, “Trump and his appointees have learned to use executive power “to push those fringe ideas out to the forefront.”

She reported that in the first days of Trump II she experienced the “false comfort” of believing the courts would put a quick end to these fringe ideas. Now that she sees these extremist positions being advanced by Justice Department lawyers she recognizes that the administration’s overarching goal is to “maximize power.”

“Normalizing” Sabotage to the System
Das and Jadwat took pains to place Trump’s executive orders in context, noting that budget cuts and administrative changes are further eroding immigrants’ rights—from the expansion of detention to the expected elimination of legal counsel for migrant children who enter the United States without an accompanying adult. Das said, “They’re expanding these…changes, any one of which would have [previously] been cause for extreme alarm….This is the process of ‘normalization’…. Everyone’s still shocked and upset, but it’s kind of like you’re bracing yourself for the next thing.”

Jadwat noted that the administration is carrying out Project 2025, which is “essentially a blueprint for halting legal immigration” by dismantling the system and “inserting spanners in the works wherever possible.”

Later in the discussion the two expressed frustration that the immigration system has long been deeply and terribly flawed—for example routinely denying asylum to migrants with legitimate claims. Still, Jadwat said, “it was far too slow and far too fair for the folks who want to deport a million plus people a year,” and thus the Trump administration is laying waste to it.

The Alien Enemies Act of 1798
Days before the event, in headline-generating news, the ACLU had sought to halt the sudden and unprecedented deportation of a plane load of Venezuelan men under an obscure 18th century law, the Alien Enemies Act of 1798.

Jadwat broke down the administration’s rationale and the sequence of events. He explained the Trump administration’s eagerness to deploy the Act came from frustration with immigrant protections. “You can’t just disappear people in a flash. There’s procedures to go through. Everything takes time.”

Jadwat described the Act as a “wartime emergency authority” that has been criticized since its inception and used just four times, against enemies in Congressionally-declared wars—one of those times against Japanese citizens during WWII.

Only hours before the plane was set to depart, the Trump administration released its order and rationale, claiming the men on the plane were Venezuelan gang members and that the U.S. was “at war” with the gang.

The ACLU was prepared to challenge the deportation order only because it had earlier been alarmed by the unexplained detention of numerous Venezuelan migrant men, suddenly gathered in a single Texas detention center.

Violating the federal court order halting the plane, the plane delivered the men to a notorious Salvadoran prison. Jadwat said the litigation now is on two tracks, first to challenge the legality of the president’s order, and second to investigate why the plane did not turn around and return to the United States, as the judge had ordered.

Travel Bans and Free Speech
Das noted the burgeoning fears on university campuses, observing that “international students, lawful permanent residents, people who’ve been involved in campus protests, people who may be subject to the next version of the travel ban” are all afraid, especially since the administration targeted Columbia activist and green card holder Mahmoud Khalil.

Here Jadwat inserted a single upbeat note, comparing the widespread outrage over Khalil’s detention and potential deportation to the groundswell of public protest against the 2017 travel ban: people intuitively “could grasp in a very direct way…this was wrong.” He declared, “it’s super-important that people have been coming out…large numbers of people standing up and saying this is a problem.”