The New Year is the time that people look both back and look forward, to take stock of what has happened in the past year and to anticipate what will happen in the next. There's no reason that this should not apply to immigration, and I will attempt to do so, at least in part.
Unfortunately, 2018 has been a year of many lost opportunities in the world of immigration. And 2019 is not looking a whole lot more hopeful.
There have been achievements, don't get me wrong. The most significant, from my perspective, was the ability of then-Attorney General (AG) Jeff Sessions to break through the notorious Washington bureaucracy to hire 128 new immigration judges in less than two years, a fact that I lauded in an October 2018 post. We are a secular think tank (of numerous faiths), but I think it to be universally agreed that Matthew 6:21 states a reasonable fact: "For where your treasure is, there your heart will be also." You can judge people (or institutions) based on what they spend money on. The fact that so little was spent on the immigration courts reflected Congress''s degree of interest in actually enforcing the laws it wrote. Sessions should get the Medal of Freedom (our nation's highest civilian honor) for that achievement alone.
Unfortunately, it does not appear that the Department of Justice (DOJ) has made much movement on this front since AG Sessions left. USAjobs, the government's hiring website, does not show any current openings for immigration judges (not that I am looking to take the job again, although I do still have the wardrobe). If Acting-AG Whitaker (or AG-nominee Barr) fails to build on AG Sessions' work in beefing up the immigration judiciary, it will be to their discredit. We need a lot more judges, and quickly.
The Supreme Court yesterday issued a decision in Trump v. Hawaii, reversing a Ninth Circuit decision enjoining portions of Presidential Proclamation 9645, the latest iteration of the so-called "travel ban". That decision strikes a significant blow for the authority of the Executive branch to protect the national security by suspending the entry of any aliens or class of aliens it finds would be detrimental to the interests of the United States.
Even that achievement was bittersweet. The fact that it took the Supreme Court to issue an opinion reversing some truly odious lower-court decisions on one of the oldest principles in American jurisprudence just shows how far down the rabbit hole immigration enforcement is, at least from the perspective of the courts. Regrettably, it appears that will be the responsibility of nine unelected lawyers (or at least five of them) to undo the mischief that continues to be perpetrated by their subordinates.
Speaking of that, the next significant achievement was AG Sessions' use of his certification authority to set immigration policy on continuances, administrative closure, and the rules governing asylum. That one district court judge has limited the effectiveness of that latter order (in what I believe is a wrongly decided decision) dims my optimism, however. Certification is a powerful tool in the AG's arsenal as it relates to immigration policy, but one that has been underutilized for as long as I have been involved in immigration. On this point, Acting-AG Whitaker has at least continued AG Sessions' use of this authority.
Nothing much else springs to mind, however, as a true success in the field of immigration in 2018. On the other hand, there have been many missed opportunities to reform the immigration laws and improve immigration enforcement in 2018.
Lieutenant Edward Doherty, the Union army officer charged with the capture of John Wilkes Booth, recounted the assassin's last moments. After his quarry was shot fatally, Doherty recounted, "Booth asked me by signs to raise his hands. I lifted them up and he gasped, 'Useless, useless!'" I am loath to quote the killer of a man whose picture is in my office, but it aptly describes the efforts of the 115th Congress to fix the immigration laws in order to plug the loopholes that are being exploited (especially by parents entering illegally with children) along the Southwest border.
In particular, Congress failed to pass the "Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act" (Davis-Oliver, H.R. 2431), which I described in detail in a May 2017 post. It failed to pass the Securing America's Future Act (SAFA, H.R. 4760), which my colleague Mark Krikorian described as "the only DACA proposal out there worth the attention of conservatives." It even failed to pass the flawed SECURE Act (S. 2192), which I discussed in a December 2017 post and another December 2017 post, and the even-more flawed Border Security and Immigration Reform Act of 2018 (H.R. 6136), which the Center analyzed in a June 2018 post.
Having worked for Congress, I understand how difficult it is to get legislation passed. The urgency, however, of crucial border legislation is best demonstrated by the caravan, which has made its way to the United States border with Mexico in order to take advantage of the flaws in current law. And by the deaths of two children whose parents brought them to the deserts west of El Paso to gain entry to the United States, two more tragedies in the year.
Not to let the judiciary off the hook, the immigration news from the third branch has not been much better, with the exception of the Supreme Court's decision in Hawaii, which I discussed above. In U.S. vs. Regents of the University of California, the Court of Appeals for the Ninth Circuit issued a decision (177 days after oral argument) affirming a decision of Judge William Alsup of the U.S. District Court for the Northern District of California ordering the Department of Homeland Security (DHS) to maintain the Deferred Action for Childhood Arrivals (DACA) program "on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments," with certain exceptions.
As I explained in a November 2018 post, the Ninth Circuit held that neither the Administrative Procedures Act (APA) nor the Immigration and Nationality Act (INA) barred its review of the decision to end DACA. I continued:
It next held that Acting Secretary of Homeland Security Elaine Duke "was incorrect in her belief that DACA was illegal and had to be rescinded," and that therefore the plaintiffs in that matter were likely to succeed in their argument that the rescission of DACA must be set aside under the APA as arbitrary and capricious.
It [then] held that the district court did not err in issuing a nationwide injunction. Finally, the circuit court held that the court below had properly denied the government's motion to dismiss "plaintiffs' APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection."
As the court described that latter argument: "[I]t is a freestanding claim that the Executive Branch, motivated by animus, ended a program that overwhelmingly benefits a certain ethnic group." The court explained:
[P]laintiffs allege that the rescission of DACA disproportionately impacts Latinos and individuals of Mexican heritage, who account for 93% of DACA recipients. The complaints also allege a history of animus toward persons of Hispanic descent evidenced by both pre-presidential and post-presidential statements by President Trump, who is alleged to have decided to end DACA, even though the directive to the Acting Secretary was issued from Attorney General Sessions. Finally, the district court properly considered "the unusual history behind the rescission," all of which appeared in the record submitted by the government. ... As the district court noted, "DACA received reaffirmation by the agency as recently as three months before the rescission, only to be hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality). This strange about-face, done at lightning speed, suggests that the normal care and consideration within the agency was bypassed."
Respectfully, under the standard, it would be impossible for the Trump administration to ever rescind the DACA, unless the chief executive officer of the United States recused himself from a significant policy decision, a point of questionable constitutional validity.
Of course, DOJ has filed a petition for certiorari with the Supreme Court in that case.
On November 19, 2018, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California issued an order granting a temporary restraining order (redundancy in the original) of an interim final rule issued by DHS and DOJ that, together with a presidential proclamation issued the same day, would have barred aliens who entered illegally between the ports of entry from being eligible for asylum. I synopsized that interim final rule and presidential proclamation in a November 9, 2018, post. I also discussed the problems with Judge Tigar's order in a November 20, 2018, post captioned "District Court Judge Sets Immigration Policy, Again". The title says it all.
On October 3, 2018, Judge Edward M. Chen of the U.S. District Court for the Northern District of California issued an order "enjoin[ing] and restrain[ing]" the Department of Homeland Security (DHS) from terminating Temporary Protected Status (TPS) for Sudan, Haiti, El Salvador, and Nicaragua. The issues with that decision are detailed in an October 2018 post.
Not to be outdone, Judge Dolly Gee of the U.S. District Court for the Central District of California issued an order in Flores v. Sessions, the latest twist in the two-decade-long saga that began with the settlement agreement in Flores v. Reno. As I stated in a July 2018 post: "The predictable result of that order will be a continued (if not increased) flow of aliens generally, and unaccompanied alien children (UACs) and family units in particular, entering the United States illegally."
As noted above, 2019 is not stacking up to be much better. The Democrats seized control of the House of Representatives in the 2018 election, while the Republicans continue to hold the Senate. It is doubtful that Speaker-designee Nancy Pelosi and her caucus will be interested in much other than attempting to thwart the president's policies (and especially his immigration policies), and possibly seeking his impeachment. The current partial government shutdown over border security does not bode well for the prospects of meaningful reform of the laws that currently draw foreign nationals toward illegal entry along the Southwest border.
Ever the optimist, however, I am hopeful that the Supreme Court (which seems to all the more play the role of adult in the room in the federal judiciary) will undo lower court orders on DACA and TPS, and possibly even curb some of the worst parts of the Flores settlement agreement. This will give the president bargaining chips that he can use to squeeze concessions out of the Democratic caucus in the House. If that occurs, the president must be resolute in driving the best bargain he can get. Funding for a border wall is not enough. Closing the border loopholes, ending the diversity visa lottery, and cutting chain migration (among other immigration reforms) must be included in any agreement.
If not, 2020 may not be a good year for the president either. Let's not get too far ahead of ourselves, however.