Immigration will be a key issue in 2025. Cornell Law School professor Stephen Yale-Loehr and a panel of the school’s immigration law and policy research experts share what immigration laws and policies might change post-election and next year.
Many people disagree on solutions for the challenges in the U.S. immigration system.
While each branch of government continues to arrive at an impasse, employers face labor shortages. The demographics of an aging population and declining birth rates are indisputable. More people worldwide are fleeing societal collapses, climate change and persecution. And over 10 million people lack legal immigration status in the United States, with immigration courts facing a backlog of over 3 million deportation cases.
Join Cornell Law School professor Stephen Yale-Loehr and Distinguished Visiting Immigration Scholars Amy Nice, Charles Kamasaki, Marielena Hincapié, Randel Johnson and Theresa Cardinal Brown as they discuss what immigration laws and policies might change post-election and next year.
What You'll Learn
The Cornell Keynotes podcast is brought to you by eCornell, which offers more than 200 online certificate programs to help professionals advance their careers and organizations. Learn more in our Immigration Law certificate program co-authored by Stephen Yale-Loehr.
Additional Resources
Did you enjoy this episode of the Cornell Keynotes podcast? Watch the full Keynote.
Chris Wofford: Today on Cornell Keynotes, we are covering immigration law and policy developments that may occur during a second Trump administration and how lawmakers might respond. Our guest host is Steve Yale-Loehr, who is a professor of immigration practice at Cornell Law School and director of the law school's Immigration Law and Policy Research Program.
Chris Wofford: Joining Stephen are five visiting immigration scholars in the program. Marielena Hincapié, Charles Kamasaki, Amy Nice, Teresa Cardinal Brown, and Randy Johnson. Now, much of the panel's conversation here explores likely developments in immigration policy in 2025, then builds on legal recommendations found in Immigration Reform, a Path Forward, which is a published white paper that proposes three targeted immigration reforms That may be pursued during the upcoming trump administration And as you know, this is a timely and critical conversation right now and our panel brings much needed clarity To a number of legal issues related to immigration today So now let's join Stephen Yale-Loehr and our immigration panel to discuss immigration policy in 2025
Stephen Yale-Loehr: First, let's start with what might happen between now and January 20th. While the by the administration still is in power. Marielena, let's start with you. What do you think immigrant rights advocates and stakeholders are doing to prepare for the next administration?
Marielena Hincapié: Yes. Thank you, Steve. So we've had about a year to prepare more to prepare for the Trump administration.
Marielena Hincapié: Many nonprofit organizations and philanthropy and many stakeholders, including state and local governments have been looking at Project 2025 and Project 47, which are the blueprints that the Trump campaign has been using where they've been very clear about what their plans are. Um, And so some Some of what's happening in preparation for now that we have the election results, and we know that we're having a second Trump administration.
Marielena Hincapié: A couple of things are happening. One is organizations like the National Immigration Law Center, American Immigration Council, National Immigration Justice Center, and the ACLU are preparing litigation. Second, we've got state and local governments, right? State attorney generals, state governors are also preparing about what they can do, both in terms of litigation, but how do they do it.
Marielena Hincapié: Um, Protect all of their residents, not just immigrants, but all of their residents. And I'll talk more about that later. And then, immigrant rights advocates are also, uh, and, and many law schools are also preparing, immigrant communities through Know Your Rights, uh, workshops, webinars like this one, uh, materials including.
Marielena Hincapié: Templates for a power of attorney for guardianship, and these are important because for immigrants who may be caught up in mass deportation, workplace raids, etc. It's important for parents to have someone who will be in charge. Who's going to pick up their child from school at the end of the day if that parent gets detained, who will have guardianship, who will have access to their bank accounts if they get detained and are deported, who will pick up that last final paycheck when that workplace raid happens and that person gets put into deportation proceedings.
Marielena Hincapié: So there's a lot of work that's underway. One of the other things is particularly because we're at Cornell, uh, international students are also preparing at, uh, during the holidays, many international students leave the country to go spend the holidays with their family members. Well, one of the important recommendations is that international students return to the United States.
Marielena Hincapié: Before January 20th, and I would say that's probably true for everyone traveling who is not a US citizen to return before the inauguration, because we do not know what will happen once the Trump administration comes in, in terms of blocking the border and perhaps not allowing people back into the US.
Stephen Yale-Loehr: So Charles, what other things should people be thinking about doing now? For example, if someone needs to file for a work permit renewal, should they be doing that sooner rather than later?
Charles Kamasaki: In general, I think while everybody's situation is different and people should definitely consult with a qualified legal services provider before they do anything in general, I think the answer is yes.
Charles Kamasaki: That folks are being encouraged to apply for benefits or, or, uh, things like work permits that, that they're entitled to, second, just as important is, advocates are pressing, the Biden administration to process, pending caseloads, which in some cases can be quite large. As quickly as possible to make sure those are done on consistent with the policies of of that administration.
Charles Kamasaki: and and frankly, long time immigration law, 3rd, many of us are pressing both the administration, state, local and state, local governments, and for that matter, private philanthropy, to expand funding for legal services, because so many people will need that. whether those are people facing deportation or those are people seeking some sort of lawful entry.
Charles Kamasaki: And finally I think there's a lot of thought being put into kind of novel legal issues, questions like can the alien and enemies act, which was the, uh, the bill, the statute that was used to justify the, Detention of Japanese Americans during World War Two or the Insurrection Act, which theoretically could suspend many aspects of due process that most Americans, I think, take for granted.
Charles Kamasaki: I think there's a lot of research being done on on those kind of novel legal issues.
Stephen Yale-Loehr: And one thing I would add is that individuals who are sort of in a what I call a liminal or gray area status like temporary protected status or parole that could be taken away should try to get a consultation with an experienced immigration lawyer to see if they have any other options to remain here in case those statuses do get terminated.
Stephen Yale-Loehr: The problem as you pointed out Charles is we simply don't have enough immigration lawyers to provide such advice so that's a problem. Amy, let me ask you a question. You used to work in the White House, and you have been very involved with reforming various rules over the years. The Biden administration has some rules that it has come out with, and one, for example, would reform the H 1B temporary work visa program.
Stephen Yale-Loehr: Is there a chance that could get finalized before January 20th?
Amy Nice: I think that there is a chance at this time, it's unknown whether it'll be published, but the H 1B modernization regulation, as you suggested, has been worked on for about three years with the idea that even under the current statute, the Department of Homeland Security could do more things more clearly among other things, This particular rule would require that U.
Amy Nice: S. Citizenship and Immigration Services give deference to their prior decisions that involve the same employer and the same foreign born employee. It would require U. S. CIS to provide maintenance of status for international students when they have an employer that recruited them on campus and is sponsoring them for a work visa.
Amy Nice: And would clarify exactly when petitions for H 1B status that are not subject to the statutory numerical limits can be filed. In order for this to be a final rule before Trump 2. 0 starts, it has to be published in the Federal Register no later than December 18th, because this type of rule requires a 30 day delayed effective date.
Amy Nice: meaning January 17th, 2024, the last business day before inauguration. Another rule, Steve, that I should mention in that same vein that's been worked on over the last three years is an effort by the Department of State to reimagine when J 1 visa holders are subject to a two year home residency requirement.
Amy Nice: For the last 50 years, the State Department has simply asked home countries to re imagine when J 1 visa holders are subject to a two year home residency If they want people to return home, but under the controlling statute, that doesn't seem to be the best approach in the 21st century. We think this rule is likely to be finalized in early December and expect that many countries will be removed from the list requiring this two year return home.
Stephen Yale-Loehr: Great. Randy, let me turn to you. You were Vice President for Immigration and Labor at the U. S. Chamber of Commerce for many years and you've seen a lot of legislative battles over immigration. Is immigration legislation possible between now and the end of the year? I mean, Congress is back in session right now as what we call a lame duck session before the new Congress convenes in late January.
Stephen Yale-Loehr: What is possible and frankly, is it at all likely to be anything happening?
Randel Johnson: Yes. Thanks, Steven. course, as you know, we have been working with Congressman Swazi and Littrell, Swazi being a Democrat out of New York, Littrell out of Texas on a draft bill. That was a good bill. I mean, it had a lot of strong border stuff in there, asylum reforms, which not certainly everyone liked.
Randel Johnson: A lot of money, but it had DACA reform in there. It had the idea of applying for asylum at mobility offices outside of the country. Relief from nursing shortages, uh, Afghan relief, uh, even the ag bill was in a, in a draft outline. And look, we were somewhat optimistic that, we could work towards a discharge petition, which I know is inside baseball, but would go around the speaker and And bring that bill up thinking that, that Republicans retiring might want to join such an effort.
Randel Johnson: But with the results of the election, I think it's quite clear that the speaker is going to put a lid on everything on immigration. likely, and we can talk about this later, passage of H. R. 2, uh, when they return, but, uh, that nothing's gonna happen along those lines, unfortunately, and, and I would predict when they come back after the Thanksgiving break, they'll probably come in for 3 or 4 days and perhaps even leave quickly.
Randel Johnson: Uh, so the answer, the depressing answer to your question is, no, nothing in, in lame duck.
Stephen Yale-Loehr: Well, Teresa, let me ask you. I mean, there are certain things that Congress has to pass in the lame duck session. They have to figure out appropriations, for example, and there's National Defense Authorization Act. Uh, is there any possibility immigration could be attached to one of those must pass bills?
Theresa Brown: I think there is a possibility that some small things could be attached. Usually every year there are some renewals of things like the authorization for E Verify or changes to the H 2B category allowing for the administration to add extra visas. These have been attached to appropriations bills each of the last several years generally on a bipartisan basis.
Theresa Brown: So I do think there is some options there. The Democrats still control the Senate. The, President Biden is still the president who has to sign bills. And that means the negotiations for the remainder of this year will include the Democrats. And so they can try to get some stuff on their Republicans knowing that they will have both the Senate majority and the house majority next year may be reluctant to do so.
Theresa Brown: It's an. ongoing question right now whether or not they would actually finish a full year appropriation for the next, uh, this current fiscal year before they leave in December, or they would essentially kick the can into the next Congress by a continuing resolution, which is a short term funding bill.
Theresa Brown: That would let the next Congress take up the full appropriations. That's an outstanding question because even Republicans aren't sure what's the better tactical play for them. Obviously, they would have more leverage when Trump becomes president and Republicans take control of Congress, but that limits the time that the Trump administration and Republicans would have to do the budgeting for the next year.
Theresa Brown: And they have a lot of things they want to try to do on the budget for next year. So, I think that there is opportunity from some small things to go it legislatively this year on either the defense authorization or on the appropriations, but it's still a little uncertain how that's going to play out.
Theresa Brown: I'd also say that there is a premium being placed right now in the Senate. on, uh, seeing how many judges that President Biden has nominated can be, confirmed before the end of this Congress. And that will probably be very important as we're all definitely looking, as Marilena said, next year to a lot of litigation around immigration.
Theresa Brown: And so obviously, if there are more judges appointed by a democratic President on the bench when those lawsuits come forward. Many immigration advocates believe they might have some better chances as they go forward there.
Stephen Yale-Loehr: Right. Well, speaking of next year, let's segue into part two of our presentation that's talking about the first 100 days beginning with January 20th.
Stephen Yale-Loehr: Uh, Marielena. President Trump says he's planning mass deportations as soon as he is inaugurated. What does that mean? And is it feasible?
Marielena Hincapié: That is the 64 million question, Steve, right? We don't know. They have been very public, and this has caught a lot of public attention. One of the things that we do know, if we look back in history, because the Trump campaign has talked about Operation Wetback as one of the models that they're looking at that, and that was back in 19, 1950s, that was targeting Mexican immigrants in particular.
Marielena Hincapié: And there, under President Eisenhower. We saw that even Mexican, uh, US citizens were wrongfully deported because often what it means in practice is racial profiling. What we are likely to see under the Trump administration at the very least is a lot of aggressive workplace raids. And we saw that at the end of the Trump administration back in, uh, the, in his first administration, uh, where they.
Marielena Hincapié: Basically came into factories and terrorized immigrants who were then detained, and there was a lot of racial profiling and it disrupted entire communities and impacted entire communities. And so that at the very least is what we're likely to see. We're also likely to see and one of the things that the Trump campaign has to do.
Marielena Hincapié: talked about is partnering with local law enforcement, like sheriff's departments, but also with private contractors and possibly even engaging the military. That raises major constitutional questions about whether they can in fact do this. It raises questions about due process and equal protection and the proper role of the military.
Marielena Hincapié: In terms of targeting civil, uh, civilians in the United States rather than, uh, foreign targets. So there's a lot of questions. I think there's a lot that can be done to protect. And I think this is one of the places, again, where state and local governments are going to have a very important role in blocking those efforts as well.
Marielena Hincapié: And, and, and that businesses also need to step up and protect themselves as a business entity, but also their workers.
Stephen Yale-Loehr: Well, Teresa, what are some of the logistics that would be required to actually deport many people?
Theresa Brown: Well, I think the logistics are what probably initially at least going to be the biggest limiting factor to how much an incoming administration can do.
Theresa Brown: We have been hearing that President Trump is de Determined to declare a national emergency. What that does is effectively is give him more flexibility to move money and resources around the federal government to put towards this deportation operation. Maria Elena mentioned that there has been talk about using the military exactly in what capacity they would use the military is to be determined.
Theresa Brown: Probably the easiest thing for them to do initially is use the military to help with detention, uh, set up, uh, tent facilities or operate detention, facilities for people that may be arrested giving the military authority to arrest individuals under state law. Civil immigration law in the United States.
Theresa Brown: That's definitely a legal issue that would be litigated. I think that unlike Operation Wetback, the laws have significantly changed on that since 1950s and what is authorized to be done. So, uh, whether or not the Trump administration would try to do that, they would definitely face some legal challenges there, I believe.
Theresa Brown: The other thing is, though, To what extent state and local law enforcement might get involved. Obviously, there are places in the United States where jurisdictions have decided that they do not want their state and local law enforcement entities engaging with ice on immigration enforcement. There are other places in the country where those entities do engage regularly and helping ice.
Theresa Brown: And so depending on where people live, they may see joint operations between immigration and customs enforcement at local sheriffs or local police. That is also a place where you could see State and local law enforcement authorities that are willing offer their jails as, uh, detention facilities.
Theresa Brown: The government does contract with state and local governments for using certain jail facilities for immigrant detention already that could be expanded. So these are the kinds of things that I would see initially. Workplace raids as Maria Elena said could be sort of the, the first things that we see that would make major news and splashes.
Theresa Brown: Those are operations that do take a little bit of time to set up and to organize. 'cause they're not necessarily things that can be done right away, but certainly within the first few weeks or a couple of months I could, I could see that happening in certain places. Trump folks have talked about some of the cities.
Theresa Brown: Were they targeted during, uh. The campaign as places they might want to try to do that initially. The second half of the equation though, that's, that's about arresting people. That's about taking them into custody. The second half is a lot more difficult and that is how do you determine whether or not they can be deported?
Theresa Brown: Setting aside whether or not the alien enemies act would even apply here. The normal course of the deportation proceeding would require these people to go through immigration court hearings and that would require a lot of time. It's important to also understand that the expedited removal authorities that currently exist only at the border are not currently in play inside the country, although they could be and the Trump administration did try to expand those authorities on when it was last in power that was litigated and the Biden administration came in and rescinded that before that could be finalized.
Theresa Brown: That may be one of the first things they try to do, but that might require a full regulatory. action, not just a policy memorandum. And so that could take a while before they'd have those authorities. So the process that detained immigrants might go through is one of the logistical hurdles. What's the capacity of the system to process those cases?
Theresa Brown: And then even for those people that maybe they're arresting that have existing deportation orders that would not have to go through another immigration court process. The process of actually deporting people, sending people to another country. We know that there are many countries particularly Venezuela, where we know that we have a lot of people who might be susceptible to immigration enforcement in a Trump administration that are not willing to take back their citizens.
Theresa Brown: So if they're not willing to take them back, What happens to those people? Where would they go? Uh, and there are other countries where we have difficulties as well. So those are some of the process and just logistical hurdles. Do we have enough planes? Do we have enough, uh, deportation agents to do all the processing, the immigration courts?
Theresa Brown: Those are the things that I think would be the initial limiters on how big an effort and how many people we might actually see deported, uh, in a Trump administration in that first hundred days.
Stephen Yale-Loehr: So Randy, Teresa pointed out that we may see some workplace raids early on in the Trump administration.
Stephen Yale-Loehr: What is the business sector doing to prepare for such raids?
Randel Johnson: Well, first of all, Steve, there's a lot of, a lot of lawyers in the I 9 enforcement area. They're going to have an easy time of making their billable hour quotas in the next six months and not making light of a terrible situation. But I think it's, it's worth pointing out that a lot of people in the business community on labor issues, which is my other hat, I think this administration will be quite favorable on things like wage and hour issues or OSHA, or you go down the list, overtime regs, independent contractor.
Randel Johnson: It's a totally different scenario with regard to immigration and how this administration is going to approach employers. Uh, and I think it's going to be, it's going to be a lot of bad news worse than I anticipated as I've talked to practitioners, which their bottom line is, hey, we're trying to get our clients ready for the storm.
Randel Johnson: And, and Teresa and Marilana went through a lot of what could happen. I would recommend to those listening with regard to workplace, separate out workplace raids from I 9 audits and with regard to workplace raids, you may want to get on DHS's website and look at what happened just a few years ago with regard to Mississippi raids of companies.
Randel Johnson: You may want to pull down a book, about Fisher homes and what, uh, what happened when, when actually under Chertoff, when, when ice went in and for three years beat up on that company. Just to get an idea of sort of the practical reality of what can happen when the government comes in. they can, they can take a very, very harsh role of discovery, et cetera, shut your business down, of course.
Randel Johnson: If you have undocumented workers, that's going to be a problem. But what are, what are, what are all these companies being advised? Hey, this ain't labor issues. This stuff is coming at you and you need to be ready and you need to look at your I nines. Uh, you need to clean up your books. Uh, I'm not saying you're retroactively changed records, but you need to clean up your books.
Randel Johnson: if you obviously find out some workers are undocumented, uh, you know, you're gonna have to let them go. I mean, I know the brother, the more sympathetic thing might be to keep the mom, but it's illegal and you're gonna get caught. And Steve, I want to point out that it just occurred to me listening that, you know, we're in this situation possibly where employers are going to look at the paperwork again and say, Oh, you know, now that I'm looking at it a second time, actually, this paperwork doesn't really look correct anymore.
Randel Johnson: And I thought it was correct. And we're going to have to let this play out. Person go. Well, that that brings into possibly being hauled into court or hauled in before the Department of Justice on discrimination basis on the basis of national origin. So again, that's the old kits 22. But the real lesson lawyers, law firms are telling business community out there is.
Randel Johnson: This is no joke. There's a lot of focus on mass deportation. That's half of the equation. This is the other half. The government is coming after you, and it's not going to take long for them to ramp up. And, and worksite enforcement sweeping through your workplace can lead to a lot of disruption. You need to anticipate that, but do the simpler things first.
Randel Johnson: Get your I 9s in order and be prepared.
Stephen Yale-Loehr: So Charles, you know, all this is going to cost money. How was the Trump administration going to pay for this increased enforcement, hiring more ICE officers and immigration judges, et cetera?
Charles Kamasaki: Well, I think you hinted at that at the very, at the very top of the show, Steve, uh, how one defines mass deportation and how large a scale is really one question.
Charles Kamasaki: And the, uh, president elect as well as the vice president elect. And others associated with the incoming administration have said vastly different things. Some have talked about trying to deport 20 million people. Others have said we'll start with criminals first or people with final orders of deportation.
Charles Kamasaki: They're very, there's a very large gulf between those two bookends. So that's, I think, one question. Obviously, the more people you try and remove, The more expensive it'll be. Second, Teresa already hinted as well at one angle, which is to try and move money around. Uh, and, uh, Trump administration did some of this, uh, uh, listeners will recall or viewers will recall, when they moved some, defense department money to try and build the wall.
Charles Kamasaki: And during the administration, I was actually, uh, Trump, previous Trump administration, I was talking to someone close to the administration. I said, geez, you know, isn't. Isn't isn't that probably illegal? And this person said to me, Yeah, we'll probably lose in court. But guess what? They can't make us unspend the money.
Charles Kamasaki: so I think that's kind of the attitude one would expect going forward. 3rd, there is the federal budget and the appropriations process. So 1. Part of that could be the continuing resolution that Teresa talked about. And the other is something called budget reconciliation, which I know Randy, we'll talk about as well down the road.
Charles Kamasaki: So there are lots of potential ways that the administration could do that. Could try and pay for some level of deportations wherever they, uh, end up.
Marielena Hincapié: just going to add to this last piece. I think because listeners and because this has been in the press so much, one of the things we really just don't know, we don't know how this It's all going to play out.
Marielena Hincapié: And so on the one hand, it's important for immigrants and immigrant allies to prepare for the worst. Partially is we, this is, this is a campaign and president elect that is unconventional. And so it's very possible that what we will see is, you know, will the private sector come in and help out with some of the expenses?
Marielena Hincapié: Will Elon Musk and other billionaires that are now, you know, cabinet elect or others in the orbit. help provide the planes and other things, you know, other costs that are needed. The other piece is some of this is also about theatrics, right? It's about the images that they will be able to show to cause fear and panic.
Marielena Hincapié: Part of the underlying strategy of the Trump campaign that actually dates back to even the state anti immigrant laws is the attrition through enforcement, which is Let's make people's lives, immigrants lives, so horrific that people will self deport. So that will be a big part of the strategy is how to make things really bad and show and again, I use theatrics and quotes but to instill fear um, try to mitigate some of the costs.
Stephen Yale-Loehr: Amy, let me turn to you. You worked in the White House and participated in drafting executive actions. You also helped draft immigration regulations. What other executive actions or regulations might President Trump issue early in the administration besides the ones we've already talked about?
Amy Nice: Well, I want to say, for, folks listening in, how the realities that Charles and Randy and Teresa and Marielena just described play into and are connected to executive orders and presidential proclamations generally, it kind of relates to the point that Marielena just left us with about theatrics.
Amy Nice: An executive order or presidential proclamation can never. Create new authority for a president or department or agency to do a thing. Executive orders and proclamations have to rely on authorities that already exist. For a president or department or agency to do a thing. So, the point of such orders and proclamations is to prioritize actions and to get credit, the theatrics, for the thing that you're announcing.
Amy Nice: Once issued, an executive order or presidential proclamation is relied upon by departments and agencies to galvanize action and provide a policy justification for taking action. With regard to This first constellation of mass deportation related, worksite enforcement related, who are we deporting, how are we paying for it, all of those things could be subject to an executive order or presidential proclamation, but as my colleagues have discussed, there is authority to do a lot of those things.
Amy Nice: Press and the conversation might be explained away and driven by. President Trump has issued an executive order of president proclamation that those are things that just can happen. So to answer your question, I just first wanted to make sure we have a level set on are these actually new announcements and new authorities.
Amy Nice: No, they never are. But it sounds like that. I think the kinds of things that we'll see, besides those that are related to the deportation and worksite enforcement and so forth, are things that are repeated from Trump 1. 0, like to set out a Buy American, Hire American, proclamation or executive order about sort of a constellation of things that will be I think galvanizing the Trump administration to take action in various ways, including on immigration, about who, who gets hired and the systematic way that the immigration system supports or doesn't.
Amy Nice: The hiring of the right skill sets for the right people under our existing statute. So, I think the bottom line is that, We're going to expect to see processes and logistical hurdles of the type that Teresa was talking about being supported by or how to get over those process and logistical hurdles being supported by executive orders and proclamations.
Amy Nice: And that we'll see some of the same things that we saw the first go around that were later undone by President Biden about buy American hire American about travel restrictions and so forth.
Randel Johnson: in? I forgot to mention that, that expect, and this is very important for your listeners, a strengthened refocus on subcontractor joint employer relationships during the workplace raids I 9 audit process.
Randel Johnson: We all know that many employers legally have moved many obligations off to subcontractors, but there's been a suspicion that this has been done by some to hide their I 9 obligations or roll off to the subcontractor to hire the undocumented. This has been a, you know, an ongoing theory in immigration law and I 9 enforcement, uh, but because it's a big issue generally, In labor law, writ large, I wanted to mention it and make sure your listeners knew that this was clearly going to be a focus of this administration.
Charles Kamasaki: Well, and we have some experience with this. When Arizona passed its very tough anti immigration law in 2004, and, and, which actually, or 2008, which preceded the 2010 law, you saw a massive increase in People who were suddenly self employed. Uh, and you did not see what what what many predicted was a massive outflow of people from the state.
Charles Kamasaki: So I think that what Randy is talking about employers retaining those workers, but just calling them contractors is something we might expect employers to start doing.
Theresa Brown: add something to what Amy said about presidential proclamations and executive orders that come from the White House that order departments and agencies to prioritize certain things.
Theresa Brown: The authorities to do things very often are vested, not in the president, but in the secretary of the department or agency. And this is true of immigration law specifically. And so it is. Whatever the president puts in his declaration then has to be carried out by the government agencies. That can be done in a number of different ways depending on whether or not, for example, there's a new regulation required.
Theresa Brown: That, that brings in the whole Administrative Procedures Act and a lot of process. But a lot of things can be done by memorandum, can be done by policy priorities. We've seen, for example, significant changes in enforcement priorities by memorandum. And that can be done or undone. So the timing of these things probably will see a lot of big executive orders issued within days of a new administration taking office.
Theresa Brown: The subsequent memorandums or, or regulations from the agencies are where the specifics of that will be listed. And it's worth paying attention to all of those levels of Paperwork, if you will, from the government to as we because that will that will let people know exactly how this thing is going to happen.
Stephen Yale-Loehr: Marielena, let me turn to you and ask about other executive proclamations or actions that the president might take more say more internationally, whether it's title 42 refugee cuts, etc.
Marielena Hincapié: Yeah. So one of the things again that the Trump campaign has talked about is on day one, they plan to shut down the border and that that will take, that will require executive orders.
Marielena Hincapié: Unlike the first Trump administration, where towards the last couple of years we were dealing with the COVID pandemic, Title 42 will not be an option for them. Not that it was a legal option for them back then, because it was again, the They pretended that, that the immigration people who are coming at the border that they could block them because of the health crisis in the United States.
Marielena Hincapié: But they will very likely reinstate what's called remain in Mexico which is requiring people to stay in Mexico pending their applications, particularly for asylum. One of the things again, to remember about the Trump administration, this was true in the first Trump administration and will absolutely be true in the second administration is that The rhetoric is about undocumented immigrants, but in fact, the policies are about chipping away at legal immigration.
Marielena Hincapié: And one of the ways that they do that is by executive orders and other policy changes at the border that prevent people from legally applying for asylum, legally entering as refugees. We saw the, I think it was. The number of refugees allowed under the first Trump administration decreased historically to about 25,000 total and we'll likely again, see more of that um, public charge restrictions were another, uh, policy.
Marielena Hincapié: So that was an executive order that took them quite a while. They leaked that back in February of 2017 and didn't finalize the rule. But because the Biden administration did take care in making sure that all the T's were correct. And the I's were dotted when they issued their revision to the public charge rules.
Marielena Hincapié: It will, that would take some time for the administration to make those changes, but we should absolutely be very vigilant of what kinds of policies the next administration will take that curtail legal, uh, legal immigration, both at the executive executive branch, but then we also now have a trifecta and I absolutely expect Congress um, that the Republicans control both the house and the Senate.
Marielena Hincapié: To enact legislation that will be with us probably like 1924 restrictions that will be with us for decades to come.
Stephen Yale-Loehr: Charles, do you want to add something to that?
Charles Kamasaki: Just very briefly. It's something Marielena and, uh, Teresa know about more than me. And one of the other ways we saw in the last Trump administration where legal immigration was slowed was what was called then extreme vetting that is going beyond what the law or the regulations actually require to then subject.
Charles Kamasaki: applicants for, for visas to other forms of, of vetting. Uh, and that I think had a very significant, uh, effect in reducing legal immigration.
Theresa Brown: Yeah, if I can just add to that a couple of things. One is those are the kinds of policy and process changes that can go somewhat under the radar. Although the Trump administration likes to publicize them anyway, but they can go somewhat on the radar in that they are process changes That are put in place within the process that exists now that you don't necessarily know are there until your case gets stuck, or you get a notice of intent to deny or request for evidence that seems where did this come from?
Theresa Brown: We saw that under the first Trump administration, particularly with, for example, H one bees. significant increases in requests for additional evidence. Just everything took a lot longer, and that meant that not all the cases that they usually would decide in a year got adjudicated, and so some green cards didn't get issued.
Theresa Brown: The refugee numbers are within the purview of the president to set, and President Trump did set the lowest standard since 1980. And the system suffered from it. The, the, the, the nonprofits that resettle refugees lost a lot of funding and had to downsize. And it took many years of the Biden administration to rebuild that.
Theresa Brown: So if the Trump administration were to do that right away, that would also immediately decrease the number of refugees resettled. Something else I just want to point out, cause your original question was about international aspects of this. Remain in Mexico cannot be put in place by the Trump administration unless Mexico agrees.
Theresa Brown: I already mentioned the challenges of deporting people to countries that don't like to take back their, their deportees. The Trump administration, when it was in power last time, did work with Mexico sometimes under threat of tariffs and other retaliatory actions. To get cooperation in many ways. The Biden administration did to, uh, they got Mexico to agree to take back people from Cuba and Nicaragua and Haiti and Venezuela who were expelled under title 42, which was actually in place under the Biden administration longer than it was in place under the Trump administration.
Theresa Brown: But Title 42 would not have worked at all if Mexico was not willing to take back some of those people. I do expect that whether or not, you know, Title 42 as it was in place was attached to the COVID public health emergency that has now been formally ended. But it's, I would imagine that the Trump administration would come in looking for other reasons to use that law.
Theresa Brown: Maybe they would Claim that immigrants coming at the border represented a different kind of health threat. I don't know, but because that kind of expulsion authority is expansive they might look to reinstate some of that. The other thing the Trump administration did last time around was negotiating something called asylum cooperative agreements with Guatemala, El Salvador and Honduras.
Theresa Brown: I think the Guatemala agreement was the only one that actually was activated, but the got those countries to agree to take back people and have them apply for asylum there rather than in the United States a sort of safe third agreement. So I could see those kinds of negotiations also taking place under the Trump administration.
Theresa Brown: So I think there's a lot of ways in which some of the ambition of the Trump administration has to go through what other leaders of other countries are willing to do. And that can take some time to negotiate and do so. Maybe some of those things may not be things that the administration could do immediately if there's not immediate cooperation from those other countries.
Stephen Yale-Loehr: Randy, let me turn to you if President Trump, for example, were to terminate temporary protected status or humanitarian parole or deferred action for workers in labor disputes, that would have a big impact on the labor market. What is the business sector's perspective on how to deal with all of this?
Randel Johnson: Yeah, I would say in terms of supporting those steps by the president, the business community was fairly muted, uh, not wanting to delve into certain political battles, but nevertheless, behind the scenes was supportive because they do need the workers, Steve. And as you noted, I was with the chamber. So, uh, you know, this is going to happen and, and, uh, I hate to use the word hope because I know this is going to be devastating to so many families, but.
Randel Johnson: Certainly, I would hope one residual effect of this would be to put more pressure on the business community to, to, to both recognize that they're losing the workers they need, but therefore they need to get behind some type of legislation on Capitol Hill to create expanded numbers for worker visas. I do think this is one area, personally, Steve, that the Trump administration might be sympathetic to, putting aside some comments by the vice president.
Randel Johnson: Uh, but it's different than asylum. It's different than amnesty. It's sort of a straightforward way to bring in workers legally, which the administration instead of supports. And if we could get union buy in to offset the argument that this undercuts American workers, I think this is something we could see some, some progress on.
Randel Johnson: There is a, is a, uh, Bill has been introduced last year. As Amy knows, because we worked together on it, there was a bill, uh, S 744 that had a W Visa in it that was expanded worker visas for, uh, for immigrants. So, I'm hoping, despite the fact of this bad turning, that there will be this residual effect of creating more of an incentive to get the business community to work on a worker visa program, and that The Trump administration, I think, could very well be open to it.
Stephen Yale-Loehr: Marilena, uh, do you think there'll be litigation to challenge some of these new executive orders and other things?
Marielena Hincapié: there will absolutely be litigation, Steve. Um, So a couple of things. I mean, the one is just even to piggyback on what Randy just said, I really hope that the business community does not only engage the Trump, uh, second Trump administration on getting work visas, but actually on getting.
Marielena Hincapié: path to citizenship, right? Green cards and work authorizations for their workers, for the very workers that have been here for 10, 15, 20 plus years, paying taxes, who have U. S. citizen children, who are integral to our communities um, And what we did see during the first Trump administration is we did have the business sector join amicus briefs in some of our lawsuits.
Marielena Hincapié: At the time I was at the National Immigration Law Center and our lawsuit, for example, against the Trump administration with the Muslim ban or when the Trump administration tried to end DACA, the business sector did play a role as did universities, universities for the first time we're joining amicus briefs.
Marielena Hincapié: They were university presidents were, uh, issuing op eds, for example. So this is a moment for no one to sit on the sidelines and for everyone to play a role in helping to shape the America that we believe in, that we could and Um, and in addition to that, states, uh, are already getting prepared for litigation.
Marielena Hincapié: So states like Washington, California, Massachusetts, New York, who have very strong attorney generals, have already started preparing for the litigation to protect all of their residents. The last piece, and then of course the non profit. Organizations will do so as well. Filing lawsuits to block or at the very least delay the harm of these policies.
Marielena Hincapié: The last thing that I'll say is that one of the things I'm really looking at just connecting the dots and some of what we've been talking about is during the campaign, we've heard Some mention of using of calling red states like Texas to use their National Guard to go into blue states um, that are that have sanctuary city ease or not cooperating with the Trump administration.
Marielena Hincapié: If that were to happen. There will be absolutely litigation from states that are quote unquote blue and litigating against red states. And we will be at the brink of constitutional crisis in this country in a way that we've never seen before since the civil war. And so, I do want to note that as something else again, how much of it was rhetoric during the campaign versus how much of it will the Greg Abbott's of the world from Texas and DeSantis actually followed suit on.
Stephen Yale-Loehr: Teresa, you've been following litigation, uh, very closely over the years. And if I remember one comment you made, you said that these days courts are sort of the final arbiters of immigration policy decisions these days. Do you think that's going to increase in the new administration?
Theresa Brown: Well, I think everybody was nodding their heads.
Theresa Brown: Look, consistency of litigation is probably the one certainty we have. It has been prevalent in every national immigration policy, frankly, since the Obama administration and the first lawsuits against, uh, DAPA, uh, the expansion of DACA in 2014. The fact is, Maria Elena said that increasingly states are litigants not just, uh, you know, Standing on the sidelines and amicus, but actual litigants in these cases does raise constitutional questions because we are looking at states suing other states or the federal government and vice versa.
Theresa Brown: The, the difference this time from the last time in the Trump administration, I think is the effect that Trump had on the federal judiciary when he was president. He managed to put an awful lot of his own judges on the bench in these federal courts, including in what traditionally been very liberal courts, such as in the Ninth Circuit, that are going, may have different ways of evaluating the similar types of cases that we saw in previous Trump administration.
Theresa Brown: Obviously, the Supreme Court is now a 6 3 conservative majority. That will matter for the cases that make their way to the Supreme Court. So I think it's not at all certain that even similar cases on similar things would go the same way this time around as maybe they did in the first Trump administration.
Theresa Brown: And that may mean that there has to be some consideration of which cases move forward. To Maria Elena's point though, I think something we Also kind of need to understand. I know we're at the beginning of the Trump administration. It is a four year term. We have elections in two years that may or may not change the Congress.
Theresa Brown: And one of the things that Trump himself has been very, very good at through litigation is is delaying the impact of things. Trump cannot run again, and in four years there will be another president. So some of the strategies may be limit harm where you can, delay things where you can, until another administration comes in and maybe things can change.
Theresa Brown: But I absolutely expect that there will be as much if not more litigation this time around. Then there was in the past Trump administration or even that we saw during the Biden administration.
Stephen Yale-Loehr: So we've been talking about what may happen, uh, and a lot of policies that may hurt, uh, immigrants and families, uh, employers and the country as a whole.
Stephen Yale-Loehr: Let's see if we can end up on a little more positive end note what might happen that could be positive. Charles, let me start with you.
Charles Kamasaki: Well, looking through the lens of history, which increasingly I'm, I'm inclined to do perhaps due to advancing age if you, if you really zoom out, this is by far, I mean, this is hardly the first anti immigrant period that we've experienced in this country, right?
Charles Kamasaki: The first was already mentioned. Uh, the last time the foreign born population got to be about 15%, uh, we saw the, uh, enactment of the Chinese Exclusion Acts, very restrictive national origins quotas, which really reduced immigration up through the mid 1990s. 1960s. Then, uh, the so called Operation Wetback, in quotes, uh, that Maria Elena mentioned was actually not the only mass, uh, deportation in our nation's history.
Charles Kamasaki: There have, there's a very rich literature out there, some of which is summarized in my book, that documents some four major mass, uh, deportations in our history, including one during the Depression that, uh, probably deported more than a million U. S. Citizens. And, uh, you know, we've bounced back from those, right?
Charles Kamasaki: So arguably, that period led to the 1965 Immigration and Nationality Act, which rapidly and vastly expanded both the level and diversity of legal immigration to the U. S. So if I were to Looking through the lens of history, try to look forward. Uh, most recently we saw the Trump administration in its first iteration, having to pull back from its harshest policies when it was faced with family separation at the border and much publicity about that as well as kids in cages.
Charles Kamasaki: I suspect the minute that mass deportation starts to really affect us And U. S. Citizen spouses. And literally, you have cameras seeing, uh, American citizens seeing their husbands who have lived here for a long time, worked, pay taxes, not gotten in trouble with the law being ripped from their arms. And march to a deportation bus.
Charles Kamasaki: I think that starts, uh, to turn the tide a little bit. And, and finally, I would just say there's, you know, there's been a lot of attention to the Latino vote in this last election and the number of Latinos who may have voted for Trump. And I, I tend to doubt the exit accuracy of the exit polls, but there was a, some unmistakable movement in that direction.
Charles Kamasaki: Again, looking to history. In the 1950s, the vast majority of Latino scholars and organizations and advocates were actually pretty anti immigrant, as was organized labor during that period. And it was Operation Wetback that began to change those minds when they began to see U. S. citizen kids, in particular, being affected by deportations that It just hadn't occurred to them.
Charles Kamasaki: And so when you talk to Latino voters, when you listen to them, when the prospect of mass deportations comes up, they don't think it's the kind of mass deportations we've been talking about. Many of them, Well, we'll say and have said publicly, Oh, we didn't think Trump is going to do this. Or it was only about the criminals, only about the bad actors.
Charles Kamasaki: And I think to the extent they go far beyond that, uh, we may see public opinion begin to change.
Stephen Yale-Loehr: I mean, let me ask you next, is there a possibility that businesses may want to actually support legal immigration in the next Trump administration?
Amy Nice: Well, we hear a lot of talk about how Elon Musk is a big believer in high skilled immigration and that we should all rest comfortably to know that it's just going to be the criminals, first of all, second of all, it's only going to be undocumented immigrants.
Amy Nice: And I think as we've heard, Extensive conversation today. There's nothing that we know from how Trump 1. 0 operated or what the authorities are for Trump 2. 0 that make that likely that it's just going to be limited in that way. I think the thing that. To play off Charles's historical point that could relate directly to skilled immigration and actually making some inroads into modernizing, updating our legal immigration system under Trump 2.
Amy Nice: 0, is that there's going to be a recognition. That quickly that we, we, the people want workers. And as Maria Lena made the point just a little while ago, workers are skilled in many ways in many places that they're already embedded in our communities and our employment, uh, and our employer communities in, in many different sectors, geographies, industries, different sizes of companies.
Amy Nice: It's not just, you know, on a piece of paper, a thing where you can separate workers and people and the activities that we all care about across the country. So there's some idea and some hope that businesses and the business community. We'll have an opportunity to work with some members of Congress to reimagine a legal immigration system.
Amy Nice: But, you know, I think it's also, uh, true that, in Trump 1. 0, there were efforts, you know, by the Jared Kushner branch of the White House, by the Larry Kudlow National Economic Council branch of the White House to also take on legal immigration and they really couldn't get around the reality that Stephen Miller and others who had the ear of the president were controlling the agenda.
Amy Nice: So it's I think that all of us here who are scholars in the immigration law and policy research program are standing by to help and to assist and are hoping that there are such opportunities. It's also realistic to think that the It could, it could take the sweep of history as Charles was trying to educate us on before we could actually get there.
Amy Nice: It's possible, but it might take a longer window of time than this four year Trump administration.
Stephen Yale-Loehr: Marielena, what role can states and local governments play in helping on this situation?
Marielena Hincapié: Yeah, so I just want to echo again with Charles shared and Amy. Look, I'm not going to sugarcoat it. I think we have now entered into a really, really dangerous period in our history of the United States.
Marielena Hincapié: And my hope lies in state and local governments and advocacy at the state level. State and local level. I again, I'm looking a lot at history these days, and this too shall pass. The question is, how long will we be in this very painful period in our history? And state and local governments can still do so much to protect their residents, to ensure that everyone in those states have a freedom to thrive.
Marielena Hincapié: And that includes everything from education to economic policies, uh, policies that lift the floor for all Children to have food at the end of the day to have housing climate change issues, right? So there's a lot that affects our day to day life. That will absolutely will be looking to state local governments for the other thing that I would say is that because I do think that this is a moment of major.
Marielena Hincapié: Restriction like the 1924 Act. I'm looking at the next 20 plus years, right? I'm hoping that it's not going to take us 40 years as it did from the 1924 Act to the 1965 Act to get back to a more welcoming place in this country, but actually that this is the moment for us to be seeding and building communities, building bridges across ideology, across race and class and gender and building multiracial movements.
Marielena Hincapié: That will be the ones that will get us through a better day to the country that we need to become.
Stephen Yale-Loehr: Well, unfortunately, we don't have any more time. We could discuss this for hours on end. I hope we got the highlights at least to you. We do want our viewers to educate yourself about our complicated immigration system.
Stephen Yale-Loehr: We will put some resources in the chat, such as our Cornell immigration white paper and links to the project that we do at the law school to give consultations to DACA recipients. for joining us. Uh, contact your member of Congress on whatever immigration issue is important for you. You can certainly help immigrant organizations in your area, such as English as a Second Language Program, refugee resettlement organizations, et cetera.
Chris Wofford: Check out the episode notes for information on eCornell's online immigration law certificate from the law school at Cornell University.
Chris Wofford: There are also links to Cornell Law's Migration and Human Rights Program, and of course the Immigration Reform white paper I had mentioned before the show. So thank you again friends, and please subscribe to stay in touch.