The Emergence of the Immigration Bar in the Trump Years: A Personal Assessment

By GREG SISKIND1

Immigration 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

Administration’s record was abysmal. I’m in a position to know because I was co-counsel on some of those cases. They included Purdue University v. Scalia, a case filed on behalf of a dozen major universities that sought to reverse a Department of Labor wage rule that would have devastated universities and hospitals. For some colleges, complying with the rule would have shut down entire departments. For teaching hospitals, the rule threatened their ability to hire medical residents. The case ended in summary judgement and the rule was rescinded.

I was also co-counsel on Aker v. Trump, a case that sought to reverse the Administration’s plan to stop people from using the Diversity Visa. If individuals remember Trump’s remark about “shithole countries” he was referencing a legislative initiative that would have ended this visa category. Aker v. Trump had more than 100 plaintiffs and is still in litigation, but we succeeded in getting a preliminary injunction in September 2020 that forced the administration to issue 5,000 green cards it otherwise would not have and another 9,000 visas that are reserved for issuance after the litigation concludes.

These cases were just a few of many dozens of suits filed by a number of lawyers across the country, many of which resulted in injunctive relief including the rescinding of a number of rules and policies. A lot of the cases were pro bono suits (including the two I mention here). The American Immigration Lawyers Association and its foundation affiliate organization the American Immigration Council went so far as to create an in house litigation department that filed a number of suits and also set up training initiatives to help immigration lawyers learn how to file federal suits.

We didn’t always win. Trump v. Hawaii, the Muslim ban suit, was a stinging loss and the Supreme Court opened the door for a much wider use by the Administration of the use of Section 212(f) of the Immigration and Nationality Act. Section 212(f) allows a President to bar the entry of an individual or a group of individuals after a finding that the entry of the individual or group would be detrimental to the interest of the U.S. After that win, Trump began issuing more than a dozen proclamations using that power to eventually keep out hundreds of thousands of people (until later suits struck some of them down).

But there were just a handful of wins for the Trump Administration in the Supreme Court, which were far outnumbered by dozens of losses in the lower courts.

Often, immigration lawyers effectively used media strategies – including social media - to reverse the policies. The policy of separating families and detaining young children in jail-like conditions ultimately was reversed because of an enormous amount of public pressure. A whole cadre of immigration lawyers effectively harnessed the power of social media and forged relationships with journalists and activists to keep the public apprised of what was happening.

One case that got national attention was from right here in Memphis involving a pro bono client of mine. A five-months pregnant unrepresented woman married to a U.S. citizen was attending an immigration interview at the Memphis USCIS office. She ended up arrested because of a deportation order from another state which she did not even know about. The woman was in a very high-risk pregnancy and was at risk for a stroke, but nonetheless was denied her medicine and put on an 8-hour bus ride to a Louisiana detention center. Her husband found us right away, and we launched a campaign on Twitter that same day that resulted in millions of views and then thousands of calls to the ICE detention center while she was still on the way to Louisiana. She ended up being sent immediately to a doctor and the next morning driven right back to Memphis and released.6

Over the course of the Trump years, my Twitter following grew from about 10,000 followers to well over 50,000, which means we now have options like this for our clients. Lawyers have always had reporters’ names in their rolodexes to deploy a media strategy when it could help. Today’s immigration lawyers now have those contacts (indeed, reporters often follow immigration lawyers on social media to find out what’s happening in the field). But we can now ally with activists to push back on out-of-control agencies that are sensitive to being viewed in a bad light.

I’m not alone, by the way, and some immigration lawyers active on social media have teamed up to advocate for legislation, regulatory changes, and to bring awareness to the litigation options many immigrants have that they didn’t know. There’s a whole new generation of immigration lawyers that are taking advantage of these new advocacy tools.

The Biden Administration is obviously very different when it comes to its views on immigration. But now that the immigration bar has come out of its shell, there’s no going back. We’re an administrative law practice

that has been used to paper filings and relatively tame advocacy on behalf of our clients. But a large number of immigration lawyers learned to fight in federal court on behalf of their clients thanks to the last President, and I doubt that skill set is going to be stored in mothballs. Nor will they leave social media or stop using the other tools they’ve learned to use to fight an unconventional battle. And perhaps that will ensure that we remain the happy bar we’ve always been.  Greg Siskind is a co-founder of Siskind Susser, a Memphis-based immigration law firm with clients throughout America. He is a member of American Immigration Lawyers Association’s Board of Governors and Vice Chair of the International Bar Association’s Immigration and Nationality Law Committee. He has written a half dozen books on immigration law topics as well as the ABA’s Lawyers’ Guide to Marketing on the Internet, now in its 4thedition. In 1994, he created the first immigration law website, and in 1998 he created the world’s first law blog. Today, he’s creating artificial intelligence-based web applications for immigration lawyers. In 2020, he was awarded the Advocacy Award by the American Immigration Lawyers Association.

1 Greg Siskind is a Memphis immigration lawyer and the 2020 recipient of the American Immigration Lawyers Association’s Advocacy Award. 2 A personal observation, but at least supported by this distinguished lawyer: https://www.nationofimmigrators.com/immigration-lawyers-2/ why-are-immigration-lawyers-so-happy/. 3 https://www.studentloanplanner.com/highest-paid-types-of-lawyers/ 4 https://www.nytimes.com/2017/01/29/us/lawyers-trump-muslim-banimmigration.html 5 https://immpolicytracking.org/. 6 https://www.commercialappeal.com/story/news/2019/03/28/ immigration-ice-detaining-pregnant-women/3003451002/.