Rishi Oza
By Rishi P. Oza
President Trump’s second presidential term has been a blinding whiplash of policy changes, and announcements unseen in the field during my almost two decades of practice. The administration has reinstated travel bans from specific countries (with little fanfare this time around), sought to introduce a $100,000 fee to be applicable to new H-1B applicants and even floated the idea of a “Gold Card”, designed to provide wealthy immigrants with a pathway to residency status in exchange for a $1M deposit into the US Treasury Department.
Mounted onto these changes has been a complete about face before the immigration courts, where the administration has moved aggressively to speed individuals through removal proceedings and ostensibly out of the country.
Most notably, the Immigration Courts have now ruled that they have no jurisdiction to grant bond to individuals that have entered the United States illegally. This reading of the law is truly novel and overturns decades of previous precedent whereupon someone that had entered the country without status could seek release from detention. As such, a grandmother that entered the country unlawfully 30 years ago would be unable to request a release from immigration detention while a court determined if she could remain in the United States.
As one of my colleagues from our office in Cleveland recently noted, even the infamous murderer Ariel Castro was eligible for a bond following his arrest for kidnapping, rape and aggravated murder. Compare this to the fact that an individual considered unlawfully present in the United States is not even eligible for bond speaks to the seemingly obvious discrepancy in how the criminal justice system treats defendants compared to the immigration system’s treatment of foreign nationals.
Additionally, the Immigration Courts have streamlined the ability to dispose of cases quickly. In a recent decision issued by the Board of Immigration Appeals, an Immigration Judge may “pretermit” or dismiss an application for asylum without even permitting an applicant to provide testimony or arguments.
While the Board’s rationale was predicated on long-established case law, the practical effect of its decision is that individuals in removal proceedings should expect that their cases are moved along at a much faster pace than previously experienced.
Much of this may be in response to a growing trend in immigration courts of delay. Case delays have ballooned over the last decade. According to publicly available data, the average removal case takes over 500 days to complete with some cases taking years. Moreover, for the first time since 2012, the immigration court backlog has decreased. Despite the pronouncements of the Trump Administration, less than 2% of new cases before the Immigration Courts are based upon any alleged criminal activity (apart from illegal entry into the United States). Nevertheless, no reasonable observer of the immigration system doubts the seriousness of the government’s actions or its overall ability to act.
These changes are not only limited solely to the Immigration Courts. USCIS recently has announced changes to the naturalization process, now requiring applicants to answer more questions to prove their understanding of civics and even indicating that “neighborhood checks” may be permitted in select cases. While the agency’s ability to conduct investigations from “neighbors, employers, co-workers and business associates” as to an applicant’s character is inherently questionable (will applicants now be at the mercy of a disgruntled coworker or crazy neighbor??), the implications are that the citizenship process will also be harder.
All in all, if Trump’s vision of the United States is to reduce immigration, he may be focusing all levers of the government towards that aim. Whether that is a good idea remains to be seen.
Immigrants are entrepreneurial, risk-takers and inherently adaptable. Seeking to rid the country of such characteristics (or at least mute them) seems to be dubious proposition and may have cascading effects on the US’ long term global competitiveness and culture. Elections do indeed have consequences, but whether the American voter signed up for this type of overhaul remains unclear.
Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. Contact: roza@rbrownllc.com.
