Trump’s Vague and Confusing Immigration Policies Are the Cause

In August, U.S. Citizenship and Immigration Services, the agency that decides and grants immigration-related benefits such as visas, residency and naturalization, issued a bizarre three-page policy alert. Among other things, it vaguely noted that the agency would consider applicants who “support or promote un-American ideologies or activities” and “would apply to the maximum extent all relevant immigration laws, including the exercise of discretion, in denying the application for benefits.” Indeed, he asked evaluators to exclude people engaged in anti-Americanism, which he did not define here or elsewhere.

What is anti-Americanism? What exactly are these “ideologies or activities”? And without any meaningful guidance, how is anyone on both sides of the immigration process supposed to identify it? Perhaps the imprecision is to blame. Three weeks later, practitioners say The edge that it is almost impossible to know how to advise clients on this standard or prepare for it properly. “The problem I brought up is that it’s entirely pretextual anyway, that having something that vague is not a bug, it’s not a problem, that’s exactly what they’re looking for. Because if they’re vague, then they can say that someone can be disqualified for whatever reason they want,” said Adam S. Greenberg, a Pittsburgh-based immigration attorney.

In a potential indication of how far the administration could draw the line, Deputy Secretary of State Christopher Landau said people “praising, rationalizing, or making light of” Charlie Kirk’s killing could be denied a visa or stripped of their status without reference to a specific authority. The uncertainty “creates an environment of self-censorship where people delete their accounts or delete their posts or just don’t post content because they’re afraid they’ll have to report it to the government and the government might read it and it might influence their immigration status in the future,” said Eva Galperin, director of cybersecurity at the Electronic Frontier Foundation.

“The concern about whether this would impact applications has been around for a while, since March or even before, with the administration’s anti-Semitism policy,” said Cyrus Mehta, a New York-based immigration attorney and academic, referring to the administration’s earlier announcement that it would screen applicants’ social media for allegedly anti-Semitic content. “Anti-Americanist policy actually stems from anti-Semitism policy. »

Mehta said he has attended several naturalization interviews since the announcement and hasn’t seen any mention of it. Yet clients remain nervous and lawyers confused. “I don’t know how it’s going to be enforced. It could be enforced more vigorously, and I think it’s much more insidious than anti-Semitism… It’s really vague, it’s really broad.” He said his belief, as well as that of many other lawyers, in free speech “is completely antithetical to the advice one may be given to clients.”

Maintaining broad, discretionary immigration policies in order to confuse candidates has been a penchant of Donald Trump since his first term. The public charge rule, for example, threatened immigrants with denial of status based on highly subjective analyzes of their risk of becoming dependent on public assistance, which could take into account not only current but also hypothetical future use of benefits such as food stamps. Ultimately, I’ve never heard of anyone being denied status specifically based on the expanded public charge analysis, at least in part because it was only briefly in effect before being blocked by a federal judge during Covid. Nonetheless, a 2024 report by the Urban Institute found widespread reluctance among immigrant and mixed-status families to use the Social Security benefits to which they were entitled, including some that were state and local and would not have been part of the public charge calculation.

The idea, at least in part, was that people overcorrected, and they did. Today, Trump officials are doing the same, but for rhetoric. This is not the first immigration initiative targeting what appears to be protected speech, following the now-notorious detention of former Columbia graduate student Mahmoud Khalil and others involved in campus protest and activism that shocked observers earlier this year. This appears much broader, however, and follows the announcement by Homeland Security and the State Department that visa applications would require applicants to both share all of their social media handles and make their accounts publicly visible, which together suggest that online criticism of the administration may now effectively pose a barrier to obtaining status. “It’s definitely changed behavior. A lot of people are saying, ‘Well, I’m making sure I don’t post anything.’ I’ve never really had that reaction before,” Mehta said.

The guidelines do not specify exactly how government judges would assess applicants’ “anti-American” sentiments, although there are worrying clues in other recent immigration actions. In April, the administration abruptly began sweeping away thousands of student visas across the country before reversing course just as abruptly and facing dozens of lawsuits and court losses. It quickly emerged in court that administration officials had simply analyzed data on international students in a federal crime database and then ordered the firings without ever confirming whether the data was accurate or whether the identified students had actually committed offenses that could lead to the loss of their status. Activists and lawyers fear that a similar approach could be used to identify alleged anti-American ideology.

“We can make assumptions based on the Trump administration’s half-baked technical implementations since February. In particular, DOGE’s behavior generally involves creating enormous amounts of data and merging it all together in a profoundly undifferentiated way,” Galperin said. “You get a lot of wildly inaccurate or useless data, and then you either just do an inflammatory keyword search – that’s how you end up getting funding to talk about transitions or transgenic mice – and then you feed it all into the AI ​​and let the AI ​​make the decision, or have the AI ​​write a summary, which, again, you’re feeding garbage into a garbage machine that will then spit out even more waste. “

USCIS did not respond to a list of detailed questions, including how it defined anti-Americanism, what criteria it gave its evaluators and whether it would use automated tools to evaluate applicants.

At least students whose visas were canceled were able to sue on the grounds that the government clearly lacked any real justification for attempting to terminate their status. When it comes to the initial issuance of benefits such as work and student visas or even permanent residency, the government, under the law, has quite a bit of discretion and is not always required to explicitly state the reason for a refusal. This opens the possibility that candidates will be rejected on this anti-American basis without even knowing it.

“The adjustment (to permanent residency) is discretionary. Extensions of status are discretionary. Waivers are discretionary. They don’t have to provide their reasoning,” Greenberg said. Although a federal court could theoretically point out that a refusal violates the First Amendment, the opportunities to appeal these decisions or obtain clarification of the reasons for their refusal are limited, particularly at consulates abroad.

“I think, for example, that students applying for visas to study in the United States are particularly vulnerable,” Mehta said. “It would be very difficult for everyone to sue. So a lot of people try to comply. A lot of people avoid, you know, posting.”