The Trump Administration’s Misleading Walk–Back of a DHS Memo on Green Cards

Since launching its mass deportation campaign, the Department of Homeland Security has insisted that “those who are not here illegally and are not breaking other laws have nothing to fear.” Yet at the same time, DHS has elevated deportations and arrests of immigrants, regardless of their immigration status, as the main metric of effective immigration policy. At the direction of deputy chief of staff Stephen Miller, DHS has targeted a quota of 3,000 arrests per day to meet President Donald Trump’s promise of “millions and millions” of deportations.

Those goals were always unachievable without targeting legal immigrants, so the administration has undermined every option to come or stay legally. The latest evidence against the claim came late last week, when DHS said it would require most immigrants to leave the United States to attempt to obtain their green cards through immigrant visa processing abroad.

After much outcry from businesses, DHS attempted to downplay the memo’s importance, particularly for skilled foreign workers. Yet the department has not withdrawn or amended the memo in any way. All immigrants will still be expected to cite unusual circumstances that rebut the presumption that they must leave the country. This will set up denials, loss of status and arrests at green card appointments and interviews.

In 1952, Congress created a process for people who entered legally with a temporary status to adjust that status to legal permanent residence without leaving the country. Since the 1980s, most legal permanent residents have received their green cards in the U.S. A majority are spouses of U.S. citizens or skilled employees of U.S. businesses. DHS wants to end this adjustment of status process and either arrest anyone denied under the new policy or take credit for the self-deportations that result.

As brazen as this new policy is, it is nothing new. Since Day 1 of this administration, DHS has attempted to cut off legal paths and arrest people when they lose their status.

The department’s initial focus was to cut off ways for immigrants to avoid the deportation dragnet. Over the last year, DHS has stripped more than 2 million legal immigrants of their parole and temporary protected status. It effectively banned asylum — even for immigrants who entered legally — reducing grant rates to just 1 in 14 applicants.

But DHS soon realized that many immigrants were still evading arrest and deportation through the green card process. In response, DHS has cut approvals of green cards in half over the past year. This caused the expiration of many immigrants’ underlying temporary status — whether a visa, parole, TPS or otherwise — setting them up for arrest.

For humanitarian categories — asylees, refugees, trafficking and crime victims — the agency quit processing almost completely. DHS has also more than quadrupled arrests of Cuban immigrants since Trump took office, even though Cubans have a special law enabling them to receive green cards after one year in the U.S.

In December, after DHS shut down refugee green card processing, it sent agents to Minnesota to arrest refugees who entered legally from abroad and still had refugee status. The justification? Failing to receive a green card within one year of entry as the law requires — even though DHS was not processing refugee green cards.

This latest policy move goes after the nonhumanitarian categories — employer- and family-sponsored immigrants — that are not already totally suspended. With DHS apparently concerned about business groups’ opposition, the main targets will likely be close relatives of U.S. citizens who are adjusting their status.

DHS is still allowing immigrants to apply for green cards, but it is saying it will only grant them to those with exceptional cases. Then, as their temporary statuses expire, it may deny them and arrest them at the same time. DHS is already arresting green card applicants, but it has been forced to release them when it finds that they are eligible. That’s the “problem” it wants to fix.

DHS is telling people they can just apply from abroad. But in addition to the family separation and costs, leaving will often cause applicants to lose their chance to return. If an employer-sponsored immigrant has to leave their job for months, their employer may be forced to fire them, costing them a job and the right to stay. In another convoluted legal twist, if someone whose status expired more than 180 days before applying entered legally, they are eligible to get a green card inside the U.S. But if they leave the country, they are barred from a visa for 3 years. If the lapse in status was over a year, they are barred for 10 years.

DHS knows all this — and would treat every one of these outcomes as a win. As significantly, DHS knows that Trump has banned 40 nationalities from receiving immigrant visas, and the State Department has suspended processing for immigrants from 75 countries. Combining these two lists means that more than 90 nationalities — half of legal immigrants — cannot undergo the green card process abroad. Despite downplaying the memo’s effect, DHS’ press comments have specifically suggested these nationalities will be forced out.

The new wall of red tape for legal immigrants isn’t some anomalous departure for the Trump administration. Rather, the bureaucratic hoops are an essential component of mass deportation. DHS needs to “illegalize” people — that is, transform people from legal to illegal — to meet its impossible deportation goals. This is also one reason why the administration has sought to end birthright citizenship. It knows that citizenship for U.S.-born children of immigrants protects those children from deportation.

Mass deportation and draconian limits on legal immigration are two sides of the same coin. So many people are here illegally solely because historically the U.S. government has made legal immigration impossible. If we want to solve the illegal immigration problem, legal immigration is the solution. But clearly DHS wants the problem more than the solution.