Inside the Trump Administration's Immigration Agenda

0:00The problem, of course, is that some things get a lot of attention. Some policies, when they're announced, everyone knows about the attempt to take away birthright citizenship. But there's hundreds and hundreds of other policies that are having profound impact on people's lives and on the immigration system that are not actively reported.

0:23Pamela Karlan:This is Stanford Legal, where we look at the cases, questions, controversies and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way you'll have access to all our new episodes as soon as they're available. I was in New York City last week and I went to the new Brooklyn Waterfront Park, which is really amazing. And while you're walking along it, almost the entire way, you can see the Statue of Liberty. And the last of, I got kind of emotional because the last of my great grandparents to arrive in the United States actually saw that statue as they sailed into New York Harbor.

1:01Pamela Karlan:And on the pedestal of that statue, there's a poem, The New Colossus by Emma Lazarus, and it ends this way. Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me. I lift my lamp beside the golden door. Now, Donald Trump seems to fixate just on the idea of the Wretched Refuse. But it's worth remembering that 40 % of American Nobel laureates are immigrants to this country. And when you count the prizes won by their children, it's probably a majority of the Nobel Prizes in the United States.

1:39Pamela Karlan:I just finished reading a book about the polio vaccine. And it's worth remembering there that Albert Sabin was an immigrant himself, and that Jonas Salk was the child of a Russian Jewish immigrant and a first-generation American father. Or as Lin-Manuel Miranda would say about this, immigrants, they get the job done. But immigration in the United States today is really quite different than it was two years ago or than it was for most of our history. For the first time in the last 50 years, it looks like more people have left America in the last year than have actually arrived here. This sea change in federal policy that's behind this is the subject of our discussion today.

2:28Pamela Karlan:Now, that sea change is in part a continuation of what Donald Trump did in his first administration. After all, the head of citizenship and immigration services then, Ken Cuccinelli, was asked actually about the Emma Lazarus poem and whether it still reflected the ethos of America. And he said, well, you know, give me your tired and your poor who can stand on their own two feet, which is not exactly what the poem said. But there's some key differences today as well. Our guest today is my colleague, Lucas Gutentag, who's a professor of the practice of law here at Stanford. He's one of the nation's leading experts on immigration law on the rights of people who aren't U.S.

3:11Pamela Karlan:citizens. He founded the American Civil Liberties Union's Immigrants Rights Project in 1985 and led it for 25 years. It still remains, I think it's fair to say, the country's premier immigration justice litigation organization. He's also served inside the government in key roles involving immigration in the Obama administration at the Department of Homeland Security, and in the Biden administration at the Department of Justice. In 2017, Lucas created something called the Immigration Policy Tracking Project. And I urge you just to go and Google that right now and go to that project. It is a website that is tracking every Trump-era immigration policy.

3:54Pamela Karlan:Lucas tells me it's getting hundreds of thousands of hits every week. And it's maintained by students here at Stanford and at Yale, where Lucas spends his time teaching in the fall. I guess he gets the best, you know, there was that line of President Kennedy's about he had the best of both worlds, a Harvard education and a Yale degree. And I think, Lucas, you have kind of the best of both worlds, a New England fall and the rest of the year here in California. So welcome to the show. Thank you very much. Thank you for having me, Pam. Thank you for that nice introduction. No, it is great to have you here.

4:28Pamela Karlan:Tell us a little bit about this immigration tracker. I should say I went to it today, not for the first time. And the first thing I saw in it was that we now have a government website called aliens.gov that acts as if the people who've come to the United States from other countries have dropped here from Mars. But the immigration tracker does much more than just tell you about these policies. Yeah, the purpose of the immigration policy tracking project is to keep track of every single Trump administration immigration policy, every downstream implementation memo or directive, to archive every document, and then to analyze and synthesize how these policies interact with each other.

5:14Because we know that one of the tactics of the Trump administration has been to so-called flood the zone, just overwhelm us every single day with new policies, new directives, new initiatives, not just in immigration, but across the board. And it's impossible for anyone to keep up with everything that's going on. And so the purpose of the tracking project is to make it accessible, allow anyone who goes to wants to see what's happening in any particular area of immigration law, any dimension by agency, by policy, by area to find the policy, see the documents, see what litigation there is that's challenging any policy, how they all interact with each other and what's in effect and what's not.

5:55Pamela Karlan:Yeah, I mean, it's kind of just the range of policies that were up there. It was everything from this pseudo science fiction thing to an announcement that they're going after a county in Virginia because the prosecutors there are taking into account in plea bargaining whether to have somebody plead guilty to a crime that makes it makes deportation mandatory or whether to let them plead guilty to something that allows them relief from deportation. transportation, to, you know, announcements about passports and the issues of passports, the new green card policy. I mean, it's really stunning. Yeah, I mean, the problem, of course, is that some things get a lot of attention.

6:38Some policies, when they're announced, everyone knows about the attempt to take away birthright citizenship. But there's hundreds and hundreds of other policies that are having profound impact on people's lives and on the immigration system that are not actively reported. And so this is to maintain awareness of those and to allow people to understand them. Just for example, we're about to publish a compilation of all the precedential Board of Immigration Appeals and Attorney General decisions that have been adopted since January 20, 2025. Well, that's over 100 new precedential decisions. It dwarfs what any other administration has done.

7:16And it's a way to essentially change the law, change the interpretation of the law without any real public awareness of it, except by immigration practitioners. And so the effort here is to compile all of those to allow for understanding, analysis, challenge where appropriate, and to have a record of everything that's been done.

7:33Pamela Karlan:So it might be worth kind of explaining a little bit to our listeners what the Board of Immigration Appeals is and what an immigration judge is, or what this administration, you told me, is now calling not an immigration judge, although that's their technical title. Yeah, they're now referred to as deportation judges in the job announcements. So that tells you one thing that this administration is doing, which is trying to destroy the immigration court system. The Board of Immigration Appeals is part of the immigration court system. It's always been subservient to the attorney general. It's part of the Justice Department.

8:06But the purpose of the immigration court system is to have a mechanism for fair and independent adjudication and individualized adjudication of immigration cases. Well, one of the things we've seen is the evisceration of the Board of immigration appeals, the firing of immigration judges, hundreds of immigration judges, and essentially to distort and to eliminate even a fair immigration court system or a modicum of fairness within the immigration court system.

8:32Pamela Karlan:So what kinds of people are inside the immigration court system and what kinds of cases are going on there? Well, the immigration court system is supposed to be available for anyone who's charged with being deportable from the United States in order to require the Department of Homeland Security to prove the charges and to give the individual an opportunity to contest those charges. Now, it's important to understand it's not a real court. There's no right to appointed counsel. If a person can't afford a lawyer, they don't have one. The burden of proof is contested. The evidentiary rules don't apply in the same way.

9:13And so, but nonetheless, it's designed to provide, as I said, at least some modicum of fairness. One of the tactics of the Trump administration has been to essentially bypass the immigration court system, in addition to destroying what's left of it, to also bypass it so that more and more individuals will be subject to deportation without being subjected to the immigration court or have an opportunity to go to the immigration court system at all. Yeah.

9:38Pamela Karlan:I mean, it used to be, as I understood it, if you were stopped at the border, you didn't necessarily get to go into court at all. They could just kind of shove you back across the border. But if you were found in Minneapolis or in Detroit or in Kansas City or in Charlotte, you got a hearing if you wanted it before you were taken out of the country. And before that hearing, people often were allowed out on the equivalent of bail. And I think I've read somewhere that it makes a real difference. First of all, if you have a lawyer, people who have a lawyer in the system do much better. But even just people who are out on bail do better than people who are detained.

10:21Pamela Karlan:And now the government's changed that policy. Absolutely. And this is part of one of the legal interpretations, contested legal interpretations, that the Trump administration has adopted. It's essentially a tactic of trying to move the law that applies at the border to the interior in several respects. One, with respect to detention, that anyone who's found in the interior of the country who at any time entered without authorization, no matter how long they've been here, 10 years, 20 years, married to a U.S. citizen, U.S. citizen children, doesn't matter. If they originally entered without inspection, the Trump administration has taken the view, contrary to 30 years of consistent interpretation, that those individuals must be detained, that they're not eligible for release.

11:04They'll be detained throughout the immigration court process and in many cases won't be eligible for the immigration court process at all. So it's all part of trying to create a system of detention and deportation without due process. That's detention is that's the the the the new detention policy is one that's been challenged in hundreds and thousands now of habeas corpus proceedings.

11:31Pamela Karlan:And people are basically winning almost all of them winning overwhelmingly in the district courts. We now have some circuit court opinions that are divided on this issue. I think that's very likely to be in the Supreme Court as early as next term. And we'll see the statute should be and has been consistently interpreted to allow for release if a person does not pose a danger or flight risk, if they're arrested in the interior of the country. The Trump administration has adopted this novel interpretation, and hopefully it won't be upheld. But we're never sure. In the meantime, though, hundreds and thousands of individuals have been allowed to have bond hearings.

12:09They're getting released. They are able to find lawyers and they have a better chance of defending themselves in the proceedings than if they're detained. Yeah.

12:17Pamela Karlan:And the other thing is, I assume that part of the reason for detaining these folks is to make it so unpleasant that they will give up, even if they have a valid claim for an adjustment of status or for asylum or the like, because being locked up for months on end, especially under the conditions that we're now seeing people being locked up under, is so unbearable. Absolutely. And that's part of the tactic of the Trump administration as well. It's what I call public spectacle and private terror. On the one hand, to engage in these kind of publicly spectacular kinds of enforcement actions like we saw in Minnesota, like in Los Angeles, to terrorize the community.

12:58And then at the same time to adopt this slew of policies that make it difficult, if not impossible, for individuals to get adequate legal representation to defend themselves, to subject them to horrific conditions of detention, all to essentially force them or cause them to give up valid legal claims and accept removal. It's also what is behind the removing people to third country, sending someone from El Salvador to Ghana, sending people from other countries to Seacott Prison. It's all designed to frighten people into giving up their rights and not pursuing legal remedies that they have available.

13:35And what are those legal remedies that people would have if they could stay in the system and go forward? Right. I mean, it varies, of course, tremendously from case to case. Asylum is one very important protection. It's become very controversial. It's one of the really proudest aspects of our immigration law that we recognize the failure of the West to provide protection to people who are fleeing the Holocaust. And in response to that, the international community adopted the convention in 1951 convention relating to refugees. The U.S. adopted that into U.S. law in 1980. And since then, we've had an asylum system that provides protection to individuals and entitles anyone in the United States who has a fear of persecution to assert that claim and get a fair determination of whether or not they have a risk of persecution if they're returned to their home country.

14:28That's essentially being eviscerated both through individual legal rulings that try to make it meaningless and by trying to block access to even applying for asylum for someone who arrives at the border or who's in the removal process and seeks to present an asylum claim. But other forms of relief are available as well. Someone may not be deportable at all. It's true that U.S. citizens get put into deportation proceedings and they have to have an opportunity to prove that. But beyond that, individuals can be married to U.S. citizens, have claims for what is referred to as discretionary relief, where extreme hardship would result from their removal.

15:06Those are all claims that can be presented, that ought to be presented, and with a lawyer can prevail. But it's also the case that the law needs to change. I mean, we have a legal system that, especially since 1996, when the law was amended significantly, is extremely harsh, limits the eligibility for discretionary relief, has restricted access to the courts to get real judicial review of individual decisions, and has imposed more detention than was previously the case. So what we're seeing with the Trump administration, in my view, is both illegal actions, absolutely without a doubt, as many, many courts have found, but also an extreme interpretation of the law that needs to be changed in order to provide a fair and humane immigration system.

16:00And I think going back to where you started, really, which is that the United States self-interest is in having a generous immigration system. Self-interest and fairness are not in competition with each other. Humanity and prosperity are aligned. We benefit enormously from immigration, and we always have. It's notable that after the pandemic, the United States did much better than Europe, for example. And all the economists that have looked at this have said that it's because of immigration that we've done better in our economy. It's a source of prosperity, of entrepreneurship, of innovation. And we're...

16:45Pamela Karlan:Well, it's one of the few reasons we're not like Japan, a country with a declining population. I mean, our population increases because of immigration and because of the birth rate among first generation Americans. Absolutely. And the Federal Reserve has said we need the labor force is declining. We need immigrants for the labor force. We need it for particular parts of the economy. But we need it across the board. Everything from Silicon Valley to home health care to the nursing area to the agricultural area. I mean, immigration is critical, and we need a system that can respond to that need, and it's in everyone's interest to have that system.

17:28It's a source of strength for the United States, not a reason to be fearful.

17:33Pamela Karlan:Well, and, you know, I wonder if we could talk a little bit, you were talking about asylum before, also about temporary protected status and what's going on there. So if you could kind of explain what temporary protected status is and then talk a little bit about what's going on. Yeah, temporary protective status is a particular authorization under the law for the Secretary of Homeland Security to designate nationals of a particular country where there's either civil war, natural disaster, other kinds of instability to provide a temporary protection for nationals of that country who are already in the United States that they shouldn't be returned to that country for a temporary period of time.

18:14that's reviewable increment. Every 18 months, it has to be reviewed to look at the conditions in that country because it's not safe to return people. It's not in the interest of that country.

18:23Pamela Karlan:And it's kind of important because people who are here on temporary protected status can get work authorization. They're entitled to work authorization and they can't be detained. So they're allowed to live and to contribute while they're here. And there's a specific legal regime for adopting temporary protected status for any particular country and for reviewing it periodically, pursuant to the criteria that are in the statute. What the Trump administration has done has been to terminate virtually all the temporary protected statuses that were granted previously, but not through the normal process of waiting for the 18-month period, conducting the proper review, and making a decision whether or not it should be continued or eliminated, but simply terminating it for either no valid reason or before the 18-month period was over.

19:13And that issues currently before the Supreme Court.

19:16Pamela Karlan:Yeah, it was kind of Kristi Noem's farewell before she headed back to South Dakota to shoot her pets. And, you know, one of the things that's striking there is that there are huge sectors, as you were kind of alluding to before, there are huge sectors of the economy in various places where the folks who are here on TPS are critical. I mean, there's a lot of health care aides here from Haiti, for example. And what, I mean, And it might be too obvious almost to ask this question, but what do you make of the fact that at the same time that the administration is doing this, the only group of people they seem to want to welcome into the country as refugees are white people from South Africa?

19:53I mean, the element of race and racism that infects the decisions of the Trump administration are, in my view, undeniable. It's not just in immigration. It's in other areas as well. But it's certainly with regard to the immigration system. And we see that with the statements from the president and from the statements of Stephen Miller. It's one of the grounds on which the district courts enjoined the TPS terminations, finding that it was based on racial animus towards Haitians and others in the decision to terminate the status. Yeah.

20:27Pamela Karlan:Donald Trump seems to think that the best immigration law we ever had was the act from 1924 that essentially cut off all immigration from southern and eastern Europe. I mean, in many respects, we really see going back to that era. That seems to be the goal of this administration because it's not it's it's TPS is one example of the effort to destabilize the legal status that people have while they're who are here. Parole termination of parole status is another birthright citizenship, of course, is the most extreme example of trying to destabilize what it means to be a U.S. citizen. But all of it's targeted to trying to essentially undo the immigration system, destroy legal immigration, eviscerate the agencies that adjudicate those cases and take us back to a period of I don't really know, but a period of seemingly no immigration or a skewed immigration to nationals and countries that the president prefers, which is anathema to the United States and one of the achievements of the civil rights.

21:40legislation of the 1960s was to get rid of that National Origins Quota Act and to create a system that was still not completely fair by any means, but certainly got rid of that racially skewed immigration system from the 1920s.

21:54Pamela Karlan:Lucas, you were talking before about how the immigration courts are not really courts. They're just part of the executive branch and the people are called judges, but they're not really judges, or at least they're not judges in the same way that Article III judges are, people who have life tenure who are confirmed by the Senate. So I thought maybe we could talk about the courts for a couple of minutes and just get a sense from you of how are the courts handling the Trump immigration policies? I mean, there's been enormous pushback from, especially at the district court level, but beyond that, but from the courts to many, many of these policies.

22:33And one of the things that I feel like it's always important to stress is courts are reactive and courts can't act unless lawyers bring cases. And what's been absolutely remarkable to me is the courage and the creativity of lawyers in bringing cases to the courts, challenging so many of these Trump administration policies. It's an incredibly daunting task and it's been met with unbelievable response, especially from the NGO community, some private law firms, although they've been the subject of retaliation.

23:08Pamela Karlan:Yeah, I was going to ask you about that, which is, you know, obviously there are all sorts of legal services organizations which are doing heroic work. I mean, there were a series of legal service organizations in Minnesota that were in there every day. The ACLU is in there all the time. State and local governments have been doing a surprising amount of really important work here. In the past, we also relied on large law firms to do this kind of work pro bono. And in conversations with some of your colleagues at various organizations, they've told me it's harder right now to get those law firms, or at least a fair number of those law firms, to do this work because they're afraid of the Trump administration.