Searching for Humanitarian Discretion in Immigration Enforcement: Reflections on a Year as an Immigration Attorney in the Trump Era

Abstract

This article describes one of the most striking features of the Trump Administration’s immigration policy: the shift in the way discretion operates in the legal immigration system. Unlike other high-profile immigration policies that have been the focus of class action lawsuits and public outcry, the changes to the role of discretion have attracted little attention, in part because they are implemented through low-visibility individualized decisions that are difficult to identify, let alone challenge systemically. After providing historical context regarding the role of discretion in the immigration system before the Trump Administration, I offer four case studies from my immigration practice in Arizona that illustrate discretion’s new role. The cases highlight three key trends that result from the way discretion currently operates in the immigration system: (1) the ever-widening enforcement net; (2) the emboldening of front-line bureaucrats; and (3) the changing bureaucratic culture within United States Citizenship and Immigration Services, an agency that previously had seen its mission as one of integration, but has now shifted to an aggressive enforcement orientation. I close with a final section reflecting on the important role that individual direct representation can play in fighting against this new enforcement regime.

Keywords: immigration