Press Club

Statutes of Liberty: Election 2020 — President Trump’s Immigration Proposals

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

Immigration law and policy depend heavily on who occupies the White House. With that in mind, we think it’s important for our fellow citizens to know what the major candidates propose to do about an important issue. In this column, we’ll discuss President Trump’s immigration platform. (We previously discussed former Vice President Joe Biden’s immigration platform, which differs greatly.)

Unlike former Vice President Joe Biden, President Trump’s campaign has not — as far as we can tell — published a platform on immigration. But President Trump’s future policies are likely to be largely a continuation of his current approach, with possible inflections based on the balance of power in the Senate and the differing political environment of a second-term President.

President Trump has changed U.S. immigration policy in deep and consequential ways throughout his first term. It’s worth recalling the full set of his major moves:

  1. The Administration imposed, and then defended with increasing success, a series of Travel Bans on countries which do not, in the opinion of the Administration, meet appropriate screening and security requirements. The most recent Travel Ban is still in effect.
  2. The so-called Family Separation policy at the U.S.-Mexico border, designed to discourage family group migration from Central America.
  3. Tightening the rules for asylum applications, both by additional evidentiary burdens on victims of gang violence and domestic violence seeking asylum and — in a recent move — by increasing the wait time for asylum-based work permits.
  4. The “Remain in Mexico” policy for Central American asylum seekers, which prevents many asylum applicants from applying for asylum in the United States.
  5. The addition of the new Public Charge Rule, which prevents potential green card holders from immigrating to the United States unless they can provide a great deal of evidence of future financial self-sufficiency.
  6. Border wall construction. As immigration restrictionists have noted, border wall construction has been… unimpressive in the terms that matter, namely new physical walls. Pre-pandemic, about one mile of new wall had been built, with just under a hundred miles of wall rebuilt. Those rebuilt walls are much more robust than the chain-link fencing that they replaced, so this is an impressive piece of construction.

So, what could we expect from a second term? The conventional wisdom is more of the same, and, as usual, the conventional wisdom is probably right. But there are a few things that we think would differ about a second Trump term.

  1. We believe that the asylum system is likely to become more bifurcated, between ‘ordinary’ claims (say, a Cameroonian political dissent who flies into JFK and applies for asylum in New York) and border claims. The Administration has begun two pilot programs, the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP), which have the goal of adjudicating asylum claims at the border within ten days. These programs are under legal challenge now, but, if President Trump is reelected, you can expect them to have a chance of survival.
  2. We believe that prospects of comprehensive immigration legislation would be more or less nil. All projections show that Democrats will continue to control the House of Representatives, and it is unlikely that a Democratic House would be able to work with the Trump Administration to pass a mutually agreeable bill. Trust between the parties is at a low ebb, and on no issue as much as immigration. (Trump skeptics should note that the Administration did propose a limited deal in 2018; its failure suggests, a forteriori, that a more comprehensive deal would fail in a second term.)
  3. We believe that the Administration will move to rescind DACA, again, but this time successfully. Our recent article on DACA rescission described how the Trump Administration failed — in the opinion of the Supreme Court — to comply with the requirements of the Administrative Procedure Act. The decision lays out a road map for the Administration to succeed a second time.

Trump’s immigration policies in a second term are likely to be quite expansive, and we were only able to hit the highlights in this space. We’re glad to answer any questions that you have about these proposals. As always, we welcome any comments and will do our best to respond.

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