Inside the Trump Administration's Immigration Agenda

Lucas Guttentag: The 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 are 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.

Pam 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 Karlan. 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. 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-tost 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.

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.

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’s 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 Guttentag, who’s a professor of the practice of law here at Stanford. He’s one of the nation’s leading experts on immigration law and on the rights of people who aren’t U.S. 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. 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.

You know, there was that line of Justice  … 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 the best of both worlds, a New England fall and the rest of the year here in California. So welcome to the show.

Lucas Guttentag: Thank you very much. Thank you for having me, Pam. And thank you for that nice introduction.

Pam Karlan: No, it is great to have you here. 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 on 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.

Lucas Guttentag: Yes, 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.

Because we know that one of the tactics of the Trump administration has been to so call “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.

Pam Karlan: Yes, it’s 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 deportation mandatory or whether to let them plead guilty to something that allows them relief from deportation, to announcements about passports and the issuance of passports, the new green card policy. It’s really stunning.

Lucas Guttentag: Yes, the 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 are 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. That’s over 100 new precedential decisions. It dwarfs what any other administration has done, and 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.

Pam 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.

Lucas Guttentag: Yeah, it’s… 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. But the purpose of the immigration court system is to have a mechanism for fair and independent adjudication and individualized adjudication of immigration cases.

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 to, essentially to distort and to eliminate even a fair immigration court system or a modicum of fairness within the immigration court system.

Pam Karlan: So what kinds of people are inside the immigration court system, and what kinds of cases are going on there?

Lucas Guttentag: 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. And 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 or 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.

Pam Karlan: Yes, 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, as soon as I think, 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. And now the government’s changed that policy.

Lucas Guttentag: 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. They’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… new detention policy is one that’s been challenged in hundreds and thousands now of habeas corpus proceedings…

Pam Karlan: And, people are basically winning almost all of them.

Lucas Guttentag: 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 it’s… we’re never sure.

In the meantime, though, hundreds and thousands of individuals have been allowed to have bond hearings. They’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.

Pam Karlan: Yes 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.

Lucas Guttentag: 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. And 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 countries, sending someone from El Salvador to Ghana, sending people from other countries to CECOT prison. It’s all designed to frighten people into giving up their rights and not pursuing legal remedies that they have available.

Pam Karlan: And what are those legal remedies that people would have if they could stay in the system and go forward?

Lucas Guttentag: 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.

That’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. Those 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. 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. And I think going back to where you started really, which is that, 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…

Pam 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.

Lucas Guttentag: 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 healthcare to the nursing area, to the agricultural area. 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. It’s a source of strength for the United States, not a reason to be fearful.

Pam 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.

Lucas Guttentag: Yeah. Temporary protected 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 that’s reviewable incremental, 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.

Pam Karlan: And it’s kind of important because people who are here on temporary protected status can get work authorization.

Lucas Guttentag: 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, it 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. And that issue is currently before the Supreme Court.

Pam Karlan: Yes, it was kind of Kristi Noem’s farewell before she headed back to South Dakota to shoot her pets. And, one of the things that’s striking there is that there are huge sectors, as you were 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 healthcare aides here from Haiti, for example. And what… 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 wanna welcome into the country as refugees, are white people from South Africa?

Lucas Guttentag: I mean, it, the, 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.

Pam Karlan: Yes. 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.

Lucas Guttentag: In many respects, we really see us going back to that era. That seems to be the goal of this administration. Because it’s not… it’s… TPS is one example of the effort to destabilize the legal status that people had while they’re, when, 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 you know achievements of the civil rights legislation 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.

Pam 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?

Lucas Guttentag: It’s… 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. And 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…

Pam Karlan: Yes I was going to, 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. 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.

And it makes you think, if big, powerful billion-dollar revenue law firms are afraid of the Trump administration and challenging their immigration policies, what must it be like to be a non-citizen who’s facing the administration?

Lucas Guttentag: Yeah, it’s… I think that the lawyers… I’m very proud of what the ACLU and the Immigrants’ Rights Project is doing, and there are many many others, and it really deserves everyone’s gratitude.

But you’re right, the clients, the immigrants themselves, are unbelievably at risk, and of course, are the targets of all these policies. Some law firms have been very helpful, but I think overall you’re absolutely right, that the law firms are much more reluctant and much more hesitant to be involved, and if, and when they’re involved, to be involved publicly. But the litigation has been very successful.

Of course, there’s lots and lots of disappointments and… but I think it’s  important to recognize… if it weren’t for the courts and the lawyers bringing the cases, the Alien Enemy Act would not have been enjoined the way it has been. Birthright citizenship would, would’ve been denied to hundreds and thousands of people across the country already.

There’d be massive detention that’s been stopped. The TPS terminations that we talked about a few moments ago, have been enjoined by the courts. The National Guard is no longer in the cities around the country. There were student visa terminations through this thing called the SEVIS system that was initiated by the Trump administration. Those have all been stopped and abandoned. The ideological deportations of individuals who were protesting in support of Gaza— those have been enjoined by the courts. And there’s countless individual cases that have been litigated by lawyers representing individual immigrants that have been litigated to the courts of appeals successfully.

Just today, the Supreme Court denied cert in a major decision from the Ninth Circuit that the Trump administration wanted to get review of regarding adequate notice to immigrants, and the court declined, and that’s remains the law. So all of those cases have been incredibly important and many more.

Pam Karlan: Yes, one of the things I was out in Minnesota recently and was talking to one of the judges there who said, you know, he had hundreds of these cases in which he keeps calling the lawyer… and he said that, you know, you talked earlier about how the immigration judges have disappeared. The lawyers in the U.S. Attorney’s office in Minnesota have disappeared. They’ve quit or they’ve been fired and he said it’s, it’s really difficult because you say to the lawyer who shows up for the government, “Bring this person into court,” and they say, “I don’t know. The person’s somewhere in Arizona. The person’s somewhere in Texas.” And there’s a really notorious transcript about this with a lawyer who was sent from the Department of Homeland Security to be a lawyer for the Department of Justice, and the judge says, “Why isn’t this guy back?” And the lawyer says, “Look, I don’t know why he’s back. They won’t take my calls. I’ve threatened to quit. This job sucks. This system sucks. Hold me in contempt so that you can put me in jail overnight and I can get some rest.” I mean, it really, the court system has faced just this deluge of cases and has borne up pretty admirably under, under really quite shocking circumstances.

Lucas Guttentag: Very very much so and I think it’s important to stress, too, that it’s judges appointed across the spectrum…

Pam Karlan: But appointed by Donald Trump himself.

Lucas Guttentag: Exactly, including judges appointed by Donald Trump. So it is not an ideological divide. It’s enforcing the law, trying to hold the administration accountable, and increasingly recognizing that this administration cannot be trusted, and that the presumption of regularity that the courts normally give to government action does not apply with regard to this administration, and that’s especially true with regard to its immigration policies.

Pam Karlan: Yes. I wanted to ask you about one other change in the immigration policies, which is, you know up till now we’ve been talking about immigration policies that are… many of which are dealing with people who are not entitled to stay in the United States. Some of them will be, if they can get an asylum hearing or an adjustment of status hearing or but some of the folks just aren’t entitled to be here. One of the ways people get to stay here is to get a green card—to become a legal permanent resident. And generally, people were allowed, when they were in the United States on student visas or the like, and they wanted to get a green card and they were entitled to get one, they could just apply for it. They’d go for an interview, and they got to stay here. The government has just changed its policy on this.

Lucas Guttentag: Yes. It’s… although it’s already, and this is, seemingly, kind of sort of walking it back a little bit. And so this restriction that was announced, in broad and general terms, that the agency should look askance at people applying for what’s called “adjustment of status,” the process for getting a green card in the United States, and exercise its discretion negatively to deny that and to force people to travel back to their home country, which oftentimes is dangerous, at a minimum, is incredibly expensive, is very disruptive, oftentimes triggers barriers to returning to the United States.

Even though the person’s lawfully entitled to get a green card here, once they travel outside the country, they may not be able to get back for 10 years. All sorts of consequences. And clearly, it’s another attempt to undermine the legal immigration system, to deny legal status to people who are eligible for it.

Now there’s been a little tiny bit of walk back seemingly on that. We’ll see what happens. It would have a significant impact on employers, because many people who get green cards through this process are people based individuals who do it based on employment visas, where the employer needs that worker.

So it shows the importance. The courts are absolutely critical, and at the same time, public opposition, political organizing, all of that’s essential to trying to restore some measure of fairness and equality to the system and to push back on these policies that are not in America’s interest.

Pam Karlan: So if you were going to redesign the system, what are, like, three things you would do?

Lucas Guttentag: There’s probably more than three.

Pam Karlan: I know there’s probably like 200, but…

Lucas Guttentag: Or we could start by undoing everything that’s listed on the tracker.

Pam Karlan: Yes

Lucas Guttentag: But there are… we do need… ultimately, we need legislation. We need to modernize the immigration system to take into the account America’s economy, the needs of the public in all the ways that we’ve talked about before.

There’s enormous labor shortages. There’s lots of places… there’s population for population growth and so on. Just to dispel some of the fears that people sometimes say, that immigrants today are not learning English in the same pace that they have in the past. That’s absolutely not the case. Every study has shown that individuals are learning English as fast or faster. That, as a criminologist said to me many years ago, you know, the safest place to live is in an immigrant community—they are not committing crimes. So all these kind of fears and fear-mongering that goes on. It’s just not the case.

So we need to modernize the immigration system. We need to, we will need to restore functioning agencies. They’re being eviscerated. The ability to even adjudicate a claim is being undermined. The USCIS, the agency that issues green cards and all other kinds of visas and so on, it handles about 13 million cases a year. That’s a huge volume, and that agency’s being eviscerated. We need to retrain the workforce. We need to have humane policies. We need to recognize, ultimately, and I think this is fundamental, that immigration is a civil enforcement regime—it’s not a criminal system. Individuals do not need to be detained. They do not pose a danger to the safety and security of the United States. If they do, they can be detained, but this idea that everyone needs to be detained, that individuals should be put into jails and prisons, that they should be treated as criminals, that they should be denied a fair hearing, all of that is inconsistent with a civil immigration system that will adjudicate claims, should do it promptly.

We need massive resources infused into this system in order to adjudicate claims promptly, and we need to demilitarize the ICE enforcement mechanisms. We need to recognize it’s a civil enforcement regime, and we need to stop treating non-citizens as a threat as opposed to a benefit to the United States.

Pam Karlan: I want to thank you so much for being here today, Lucas. So thanks to our guest, Lucas Guttentag. This is Stanford Legal. If you’ve enjoyed the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves our show and helps new listeners to discover us. I’m Pam Karlan. See you next time.