The three branches of government have power in the field of immigration laws, but only the Executive Branch has taken a serious role in their implementation. Congress enacted the Immigration and Nationality Act (INA) in 1952, and the Immigration and Naturalization Service (INS) was tasked with most of the immigration functions.
The INS was housed in the Department of Justice (DOJ), and delegated to the Attorney General. After the Sept. 11 attacks, however, Congress passed the Homeland Security Act, and the Department of Homeland Security (DHS) opened its doors in 2003. Most of the immigration functions delegated to the Attorney General were transferred to the secretary of the DHS. Although the DHS houses all the offices concerning border and interior immigration enforcement, the DOJ and the Department of State are also tasked with immigration functions.
Federal agencies, including Homeland Security, are tasked with carrying out legislation passed by Congress. Congress, however, does not need to give directions to these agencies on how to enforce legislation in the field of immigration; for example, even some Republicans opposed Trump’s family separation policy. The Trump Administration has shown that the White House has much power in changing immigration laws, although the Judiciary has blocked some of those changes. In particular, the DHS has been fundamental in Trump’s crackdown on immigration. The structure of the DHS includes the U.S. Immigration and Customs Enforcement (ICE) and the U.S. Customs and Border Protection (CBP). The CBP is tasked with border protection, and ICE deals with interior enforcement (e.g., apprehending undocumented immigrant who are living in the States).
Recently, the New York Times published an article that laid out Trump’s efforts to use all of the resources available through his executive agencies to shut down the border, efforts that included horrific acts such as “shooting migrants on the legs,” according to that article. Trump’s discontents on border enforcement led to the resignation of three secretaries of the DHS since he took office in 2017 — a fourth secretary has also already been announced by the president. Secretary Kirstjen Nielsen was one of the leading officials in carrying out Trump’s nefarious policies, but she stepped down in April 2019 at the president’s request.
Within the White House, Stephen Miller, the chief policy adviser to the president, was one of the strongest supporters for Trump’s mission on immigration restrictions. Miller played a key role in implementing Trump’s “Enhancing Public Safety in the Interior of the United States” executive order of Jan. 25, 2017. This executive order required the DHS to make changes to immigration rules and regulations.
For example, the memorandum states that “agencies shall … ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from protections of the Privacy Act regarding personally identifiable information.” Miller also pressured U.S. Immigration Customs Enforcement to release personal information such as names and pending crimes of apprehended immigrants within the states, an order that seems to be in place according to the ICE website.
The Department of Justice also has a say in immigration laws. The DOJ houses the Executive Office for Immigration Review (EOIR), which is comprised of the immigration courts and the Board of Immigration Appeals. Trump’s first Attorney General, Jeff Sessions, is another immigration hard-liner. Sessions was one of the leading opponents of Deferred Action for Childhood Arrivals (DACA), which was implemented in 2012 by the Obama Administration.
On Sept. 5, 2017, Sessions announced the termination of DACA. The rescinding of DACA, however, comes in an “orderly wind-down” process. Trump’s termination of DACA was challenged in the courts, and it is still in place as it was first implemented in 2012. New applications, however, are not being accepted, according to U.S. Citizenship and Immigration Services. Sessions also played a key role in the “zero-tolerance” policy that separated families at the border, and left a blueprint in the asylum reform system by limiting the ability of victims of domestic or gang violence to qualify for asylum.
The U.S. Department of State is another central component in Trump’s efforts to reduce the entrance of foreign nationals to the states. The Department of State deals with issuance of visas to foreign nationals. Trump’s “Protecting the Nation from Foreign Terrorist Entry into the United States” executive order directed the secretary of DHS, in consultation with the secretary of state, to suspend the issuance of visas to “Countries of Particular Concern.” This executive order is known as the travel ban, which suspends the entry of certain foreign nationals from Sudan, Syria, Iran, Iraq, Libya, Somalia and Yemen. The Department of State has also been involved in carrying out Trump’s National Vetting Enterprise, which led to the creation of the National Vetting Center (NVC), which basically carries out a moment-by-moment monitoring of those who “seek a visa, visa waiver, or an immigration benefit, or protected status.” The NVC uses new technologies to collect information, including social media information, from foreign national entering the U.S.
Immigration, and the wall in particular, was a signature of Trump’s campaign. It is quite evident by now that the current administration has been very successful in changing immigration laws. While Congress may not approve of Trump’s iniquitous immigration policies, it has yet to effectively curtail the administration’s aggressive immigration agenda.