The problem with ‘rigorously enforced’ immigration law

On March 6, President Trump signed a new version of his travel ban. Effective March 16, it suspends entry for nationals of six countries — all Muslim-majority — and excludes certain classes of nationals. It also creates a waiver process for affected nationals to still enter during the 90 day ban, or as thereafter extended.

Much has been written about whether this is merely “MuslimBan 2.0,” or a watered-down, tame version of the original ban that unleashed chaos in airports around the world. States are carefully considering legal grounds to challenge the new ban.

{mosads}But there was another directive issued on March 6 that is not getting much  coverage. That was the memorandum implementing the new travel ban, issued by President Trump to Secretary of Homeland Security John Kelly.

In that memo, President Trump:

“Direct(s) the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the heads of all other relevant executive departments and agencies (as identified by the Secretary of Homeland Security) to rigorously enforce all existing grounds of inadmissibility and to ensure subsequent compliance with related laws after admission.  

“The heads of all relevant executive departments and agencies shall issue new rules, regulations, or guidance (collectively, rules), as appropriate, to enforce laws relating to such grounds of inadmissibility and subsequent compliance.”

So what’s wrong with calls to “rigorously enforce” immigration law? Turns out, a lot. And this affects everyone, not just nationals of the six banned countries.

If tax law was rigorously enforced, a mistaken deduction would result in prison time. If traffic laws were rigorously enforced, a speeding ticket would result in a loss of your license to drive. If criminal laws were rigorously enforced, all crimes however minor would result in incarceration.

But, one may say, that assumes the penalty for breaking a tax law, traffic law, or criminal law will always be that severe, and that’s not the case. But rigorous enforcement of immigration laws will nearly always mean one thing: deportation, the harshest of all consequences. (That we assume deportation is the only cure for unlawful immigration is also a problem — one I’ve written about separately.)

Moreover, there is a lot of discretion given to immigration officers. That means there’s often no way to challenge their determinations. And that’s why it is of little solace that now Attorney General Jeff Sessions, in his confirmation hearing, to have claimed “I’m going to follow the laws passed by Congress.” It is easy to do that in a very heavy-handed manner when the law gives your officers wide discretion to do what they want with little fear of consequence.

Imagine not being able to fight for your driver license in court after speeding 1 mile over the limit. Or arrested if you took a tax deduction you perhaps may not have qualified for.

Now imagine being told, “You didn’t respect a law. So we’re going to rip you from your family before we hear your side of the story. You’ll be locked up until we get around to kicking you out. Yes, we’ll be using a trained legal professional to banish you from the country and no, we’re not going to give you one. Yes, we could have done things more lightly — the law allows us to — but we’re choosing to enforce the law rigorously. Yes, maybe the law allows you to stay, but sorry, you’re on your own now. Figure it out.”

That’s what makes rigorous enforcement of immigration law so dangerous.

When it implicates your freedom and your family, it’s not a civil issue, it’s a civil rights issue. When it implicates your constitutional rights, it’s not a legal process issue, it’s a due process issue.

Hassan Ahmad, Esq., is an immigration lawyer in Northern Virginia and has spent time volunteering at Washington-Dulles International Airport in the wake of Trump’s travel bans. He tweets at @HMAesq.

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