The Emergence of the Immigration Bar in the Trump Years: A Personal Assessment By GREG SISKIND1
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mmigration lawyers used to operate in obscurity and insularity. Most lawyers had a vague notion of what we did. Law schools generally didn’t bother to even teach a single course on the subject or if they did, it was a two-credit class and not taught every year. Immigration lawyers tended to hang out with other immigration lawyers and many never bothered to join bar organizations other than the American Immigration Lawyers Association (which has as members nearly every full-time immigration lawyer in America). The immigration bar is really an odd lot in many ways. We’ve been labeled the happiest legal specialty2 (despite being one of the lowest paid3). I’ve heard immigration lawyers described as social workers with law degrees. Most of us can’t imagine leaving for another field. And it’s easy to see why. When we win, we change people’s lives for the better, and we all have the government as our common opponent versus other members of the bar. It’s also an area that is regularly changing so there’s a constant challenge that requires even the most seasoned lawyers to devote substantial time to learning. If one could describe this as an idyllic situation, that was certainly tested over the last four years. Love him or hate him, the Trump presidency tested the immigration bar in ways none of us could have imagined. He attempted to bring more anti-immigrant change to the country than any President had done since Calvin Coolidge a century ago. And the bigger the headlines the better. Banning Muslim immigrants. Building a wall on the Mexican border. Massive changes making it nearly impossible to qualify for political asylum. Changes to the rules for skilled workers forcing many people in the U.S. for decades to have to leave. It was impossible not to become absorbed in the daily news cycle.
There was shell shock in the immigration bar but also a defiance that quickly emerged (starting with the Airport Lawyers during the implementation of the Muslim ban4). No one could have imagined how much work we had cut out for ourselves. The Immigration Policy Tracking Project at Yale Law School tracked changes in immigration policy from the beginning to the end of the Trump Administration. The final count of changes was 1,064.5 Some were spectacular in their scope. Some were obscure. Many were reversed, but enough survived that the new President will be spending a good portion of the next four years trying to get us back to where the system was four years ago. The most remarkable thing to me about Trump’s immigration program was that it was all done without Congress passing a single law to change a thing. Much of the agenda was driven by his advisor Stephen Miller, but the substance of the changes were mapped out before Trump actually won. The Federation for American Immigration Reform, an anti-immigrant group, published a document in November 2016 entitled Immigration Priorities for the 2017 Presidential Transition that contained a list of 72 ideas for things the Trump Administration could do without Congress. That list largely guided Stephen Miller in his policy initiatives and many FAIR alumni as well as people with similar backgrounds ended up being appointed to lead U..S immigration agencies to carry out the plans. But despite this dismal assessment, it could have been worse. Far worse. That it didn’t go as badly as it might have is largely due to an army of immigration lawyers that engaged warfare familiar to fellow lawyers (litigation) as well as the unconventional (Twitter, protests, running for office). The immigration bar fought back in the courts to the point where it became predictable that the big changes would be followed, often within hours, by a federal lawsuit. Nearly every major policy and a number of the smaller ones did, in fact, get litigated and the Trump 17
