The Trump Administration built an invisible border wall that lowered the amount of legal immigration to the United States in the absence of statutory change.  Following White House direction, United States Citizenship and Immigration Services (USCIS), the main immigration benefits granting agency, created self-described “workarounds” to the Immigration and Nationality Act.  Internal administrative law failed to stop it. 

In An Invisible Border Wall and the Dangers of Internal Agency Control, I explore this case study.  A collapse of internal administrative law allowed for unchecked executive branch power.  The case study reemphasizes the role of the courts as an important check on agency behavior. 

Interviews with immigration attorneys conducted for the case study reveal a predominant belief that the Trump administration worked to subvert legal immigration to the United States.  The Trump administration leveraged its centralized control over USCIS to implement bureaucratic maneuvers, such as increased procedural burdens, changes in subregulatory policy, a decrease in engagement with regulated parties, and an increase in the de facto burden of proof, that made obtaining a legal immigration status more difficult.  Also, the administration fired an agency head that resisted White House control and coopted the agency ombudsperson.  The administration’s actions worked against rule of law values.  The actions aimed to create an end run around the statute by using opaque bureaucratic devices. 

In response, immigration attorneys turned to the courts to attempt to bring immigration benefits adjudication back in line with the statute.  Data collected for this case study reveal that the number of complaints filed against USCIS under the Trump administration drastically increased.  From 2016-2019, complaints were up almost 200% in one category and were up almost 250% in another.  While courts were able to alleviate some aspects of the invisible wall, the courts could not reach others, and the number of complaints filed was relatively small compared to the number of applications for benefits adjudicated. 

This case study therefore illuminates unchecked executive power where internal mechanisms failed and where external control was not wholly effective.  The invisible wall leaves us with a conundrum.  To fill the gap, internal administrative law needs to be strengthened to provide protection when judicial review cannot.  But can it ever be strengthened enough to resist White House control that violates rule of law values?  As the Trump administration showed, a president intent on bulldozing through existing internal agency controls can do so.  It may be impossible to strengthen internal administrative law enough to fully carry this weight.

To strengthen internal administrative law, the Biden administration should adopt guiding principles for USCIS adjudication through a notice and comment regulation.  Here are suggested guiding principles for USCIS:

• USCIS’s adjudicatory standards, procedures, and interpretations of law should be formulated and applied to promote values of clarity, predictability, timeliness, fidelity to existing law, and equal treatment.
• USCIS’s adjudicatory standards, procedures, and interpretations of law should be formulated with an eye to increase the protection of human rights.
• USCIS’s exercises of discretion should promote clarity, predictability, equal treatment, and human rights.
• The formulation of USCIS policies should be open and transparent, with clear policy rationales adopted.
• USCIS insists on fidelity to its statutory mission and competence in its operations.

Formalizing these principles through notice and comment rulemaking will not guarantee that USCIS would resist the impulses of a future president insistent on ignoring rule of law values.  Such a regulation, however, would stand as an additional line of defense and would help to illuminate the intentions of a future president who wishes to operate in contradiction to these principles.