Immigration is one of the most complex issues of our time in the United States and around the world. Enforcing immigration law in the U.S. involves a mix of courts and executive agencies with lots of opportunities for confusion, miscommunication, and changes in approach from administration to administration. While these things are nothing new, they take on a new dimension when the lives of undocumented immigrants and asylum seekers are at stake.

Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar and Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, is an expert in immigration law and joins us this week to discuss how discretion, checks and balances, and the rule of law figure into immigration enforcement — particularly in the Trump administration. Her new book, Banned: Immigration Enforcement in the Time of Trump, includes interviews with former immigration officials and people impacted by the Trump administration’s immigration policies.

This episode is a nice compliment to our conversation earlier this year with Jan Egeland, chair of the Norwegian Refugee Council, about the politics of immigration.

Additional Information

Shoba’s book Banned: Immigration Enforcement in the Time of Trump

Our interview with Jan Egeland of the Norwegian Refugee Council 

Interview Highlights

[6:15] How does the law define immigrants and asylum seekers?

Immigrant refers to someone who is seeking admission to the United States permanently. Non immigrant is a label we use to apply to someone seeking admission to the U.S. temporarily. For somebody who is without an immigration status, that person might be labeled as undocumented.  However, the status is constantly changing. It’s possible for someone to have entered the United States without papers or cross the border and too many years later be a U.S. citizen.

In terms of where asylum seekers fall into the mix, that’s also a little complicated because you could be in a lawful status and apply for asylum. You could also be undocumented and apply for asylum.

[8:50] How much discretion exists in immigration enforcement?

There are a lot of different ways that the law can be enforced. It can be enforced to arrest somebody, interrogate, place somebody in detention, or place somebody in removal or deportation proceedings. So that might be how immigration enforcement happens on an individual level. And then there are these macro decisions that can be made about immigration enforcement. For example, if the enforcement arm of the Department of Homeland Security, one arm is known as Immigration Customs Enforcement, issues a policy that applies to a whole class of people. So one difference that I’ve seen with this administration is that there is expanded enforcement. Not so much in terms of the resources the government has to enforce the law, but in terms of who is being targeted for immigration enforcement, where, how, and why.

[13:35] What agencies are responsible for enforcing immigration laws?

DHS is a large cabinet level agency. It does not house only immigration, but it does house three main immigration functions. One is called Customs and Border Protection, or CBP. They’ve been in the news a lot this past summer, too. They are responsible for enforcement at the border. They also have responsibility for short-term detention. They are the first people that an asylum seeker might interact with if they arrive at the border and they are expressing a fear.

ICE, or Immigration and Customs Enforcement, is another enforcement arm and it is responsible for investigations, long-term detention of immigrants and families, as well as the actual or physical removal of non-citizens. USCIS, or US Citizenship and Immigration Services, for many years was dubbed as the customer service agency. Until recently, had nation of immigrants in their mission statement. And is responsible for processing applications for asylum, green cards, citizenship. So you can imagine if the left hand doesn’t know what the right hand is doing, there’s a lot of room for um, lack of coordination, or discord.

[19:00] Where does the rule of law fit in here?

Compassion has always been a- a key component in our immigration system, and discretion is very healthy and necessary because of the limited resources that I just described earlier. I think of compassion and discretion together as the rule of law.I think any discretionary choice made at the macro level, by an administration for example, or a federal agency, or at the micro level towards an individual or a family, should favor the non-citizen. Discretion is a powerful sword, and how it’s used really matters. That’s one reason we’ve seen a breakdown in the rule of law.

[22:54] What’s the argument for moving immigration enforcement out of the Department of Justice?

As it stands, the immigration court system is in the justice department. This is a- a bit unusual if we were to compare it to what we think about courts. In that way, immigration courts are not real courts. The federal rules of evidence don’t apply, the judges are not truly independent, they’re not article one judges, they are employees of the Department of Justice. The volume of cases they have to handle are astronomical compared to your federal court judge. In fact, one immigration judge in San Francisco has analogized immigration cases as doing death penalty cases in traffic court.

And there’s a lot of pressure to be compliant with directives from the attorney general. And these directives can sometimes undermine independence too, even though we do have a regulation that favors and supports judicial independence. So there have been many calls over the years, but in particular in the time of Trump, for there to be an immigration court that is independent, that is free of the Department of Justice, where judges can truly act independently.