Think Immigration: Zealously Representing Clients in the Face of Trump Administration Attacks

Immigration lawyers face a minefield of laws, regulations, policies, case developments, and agency interpretations that can vary in application almost daily. Under the current administration, the built-in application of discretion in our U.S. immigration laws and policies is subject to ongoing contortions that have changed decades of enforcement objectives. The American Immigration Lawyers Association (AILA) offers numerous interest group, committee, and chapter listservs that are in constant overdrive with lawyers trying to determine the appropriate remedy or interpretation of caselaw. These ethical efforts are made in assessing legal remedies and risks related to the case facts – not in the facilitation of fraud. Our professional ethics require that we zealously represent our clients. Now, the Trump Administration is threatening us and our clients with armed USCIS agents. Why is that a problem?

USCIS Crossing the Line into Deadly and Non-Deadly Use of Force

On September 4, 2025, the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) made a surprising announcement that USCIS would enter a New Era by expanding the “law enforcement” authority of selected new USCIS officers to be referred to as “special agents.” This new era becomes effective October 6, 2025. It is relevant to remember that compensation for federal Law Enforcement Officers (LEOs) has been a critical issue in recruitment even for the Customs and Border Protection (CBP) agency. I imagine this will be an issue as well within USCIS based on this proposal.

What is surprising is that this is happening given that when the legacy agency called the Immigration and Naturalization Service (INS) ceased to exist at midnight on February 28, 2003, its functions were divided up in a very specific way. USCIS was founded to “enhance the security and efficiency of national immigration services by focusing exclusively on the administration of benefit applications.” Immigration enforcement functions were transferred from the INS to the Bureau of Immigration and Customs Enforcement (now referred to as ICE). This separation did not mean that USCIS ignored fraud or did not enforce the law. USCIS focused on the complexity of applying U.S. immigration law and policy to benefit applications and left arrest authority to ICE. USCIS later created the Fraud Detection and National Security Directorate (FDNS) to centralize and fund its efforts to combat fraud and maximize law enforcement and intelligence community partnerships.

The problem is that this change turns the organization of DHS on its head under the Homeland Security Act. Immigration lawyers certainly have no issue with wanting to preserve the rule of law and deter/end fraud in immigration applications.  Lawyers can lose their licenses to practice law by knowingly facilitating material misrepresentations in immigration applications. The preparer’s certification on immigration forms and applications makes clear the responsibility the attorney has to ensure they are representing the facts.

So, what is the big deal?

The exercise of arrest authority or the use of non-deadly or deadly force normally requires more extensive training. In this expansion of USCIS law enforcement authority, the DHS Secretary is allowed to determine what is “substantially equivalent” to law enforcement training and the definition of the term, LEO, includes a designation by the DHS Secretary to include those engaged in the “administration of criminal justice.” This blurs the line markedly between the function of USCIS to adjudicate benefits in compliance with the immigration law versus being compared to a criminal court judge or a sheriff’s deputy for that matter.

This approach deserves a pause and assessment. Most immigration violations that might result in removal from the United States (U.S.) are not criminal. That observation means that the applicant for a visa benefit is not subject to jail, but the penalty may be removal from the U.S. and detention in an immigration detention facility.  What is going on here? Where is the line between a civil law process and the clear responsibility to provide oversight to the administration of that legal process and hunting down a criminal who committed a serious crime?

Further, immigration concepts such as a violation of status or maintenance of status are fraught with interpretative considerations developed/issued over decades. In addition, immigration regulations have built in considerations of circumstances to allow USCIS to make a discretionary decision. Can we expect those considerations to continue under a new LEO focused regime?

Immigration lawyers face extremely challenging assessments of legal policy and regulatory interpretation that can change rapidly. Under the current administration, these challenges have increased markedly due to rapid changes from Executive Orders and agency policies as well as eviscerating existing long-established uses of discretion based on regulations.

As noted above, the situation is a minefield rather than one of a clear legal pathway for compliance. There was a reason for USCIS to keep focused on applying the law in the determination of eligibility for immigration benefits. Immigration law is known for its complexity and lack of logic. That legal expertise necessity for USCIS adjudications has not disappeared and there was never a reason to expect that USCIS would not also use its assessments of case facts to apply discretion. For example, why would USCIS pursue a potential referral for removal of the spouse of a U.S. citizen who overstayed their period of admission to the U.S. when submitting an adjustment application to permanent residence?  Why indeed when the regulations have specifically excused an overstay to enable the U.S. citizen to still apply for their spouse to become a U.S. legal permanent resident and remain in the U.S. while doing so. This fact pattern of an overstay is not a criminal violation under federal immigration law.  Now, we pause on considering these types of long accepted applications for adjustment to permanent residence.  This is a short-sighted very soft enforcement target.  Since when is the application of any discretion in the immigration context seen as such a threat to national security? This myopia and shift to the use of enforcement-lenses-only has basically erased the use of prosecutorial discretion supported by the strength of regulatory support in the field of immigration law. Why? We should remember the importance of the use of such discretion even in the criminal law area.

AILA is developing resources to help our members, volunteers, and those outside the bar to work with us in this fight. I stand with my colleagues and friends to continue elevating the importance of the rule of law even in the face of existing challenges and those yet to come. Together, we can and will stand for our profession, for our integrity, and for fair and just immigration laws and policies for our clients and the nation.