Legal fictions for political ends —

The idea that America is a melting pot (or cholent, as I often like to say) of different peoples joining together as a creedal nation is nearly as old as the country itself. While today many see this concept as a cliché, in part due to the anti-immigrant revanchism we’ve seen play out in recent years, the belief in this ideal nevertheless guided the hands of Congress in crafting much of our modern immigration regime. When the foundation of our system as it exists today was legislated in the 1950s, Congress intentionally sought to leave behind the explicitly racist and discriminatory structure that had previously existed and establish a framework that prioritized family unity, domestic businesses, and the values undergirding our national interests. As part of this systemic reconstruction, Congress created the green card process that the Trump administration now seeks to functionally dismantle by dint of ostensible executive fiat.

As I emphasize to my law students every year, it is impossible to grasp the realities of our current immigration system without first understanding its history — and this new green card development is no exception. Before Congress created the ability for certain immigrants to apply for green cards within the United States without having to depart the country — what is formally referred to as “adjustment of status” — all green card applicants were forced to leave the country before they could obtain the legal status they were seeking. As I’m sure you can imagine, this created massive problems for all parties involved. For the immigrants, the headaches were immense; they had to leave behind their families, their jobs, and the lives they had built here to undergo a rigorous and unnecessarily complicated consular process. For those the immigrants left behind, the associated difficulties were extraordinary, with American spouses suddenly becoming functional single parents and American employers being deprived of their employee’s needed labor. The American government also bore the burden of this imperfect system, wasting money and expending enormous manpower on a convoluted process that one former senior INS official referred to as “the greatest paper shuffle in the history of the U.S. immigration system.”

All these realities were exceedingly persuasive motivating factors for Congress to reimagine the green card process and create adjustment of status to allow stateside acquisition of permanent resident status.

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On May 22, the Trump administration decided to put a damper on thousands of people’s Memorial Day weekend by taking a sledgehammer to this longstanding and well-functioning system. A policy memo issued by U.S. Citizenship and Immigration Services, the benefits-processing agency of our immigration infrastructure, gave new marching orders to its field officers that represent an incalculably drastic departure from all prior practice, not to mention the law itself. The memo in effect directs officers adjudicating adjustment-of-status applications to use their discretion to deny adjustment of status for applicants who previously were admitted to the country via parole or on nonimmigrant visas, even though the law as written by Congress explicitly conferred eligibility for adjustment of status upon them. This small change to guidance will have gargantuan repercussions for thousands of people, many of whom do not have the functional or actual ability to obtain a green card at an American consulate in their home country.

This massive step, while shocking in its scope, ultimately is not surprising in its transparent political motives. The loudest anti-immigrant voices in the administration, Stephen Miller chief among them, have signaled since before the president took office that their target was not merely “illegal immigration” but rather immigration writ large. In their minds, virtually all immigrants are suspect by their very nature because any perceived dilution of the supposed character of the country is an existential tragedy on par with the worst crimes imaginable.

Of course, it’s hard for the average American to square this warped viewpoint with reality when the character of our country is one inherently defined by the immigrant flows that forged it. Moreover, it’s impossible to ignore the cartoonishly obvious ways in which their scrutiny of immigrants is, quite literally, skin deep; while dozens of predominantly nonwhite and non-Christian countries are months into a pretextual travel ban that would make a eugenicist blush, the administration is separately expanding admissions for white South African “refugees” fleeing a claimed “white genocide” that in fact is utterly imaginary. While Americans’ attitude toward the administration’s immigration policies are continuing to sour in the face of immense overreach and readily apparent inhumanity, these loud anti-immigrant voices continue to double down on their worst, most venal impulses. As an observant Jew, I would encourage Mr. Miller to remember the teachings of the midrash — “You shall not wrong or oppress the stranger, for you were strangers in the land of Egypt” (Mekhilta d’Rabbi Yishmael, Parshat Mishpatim) — but then again, it’s admittedly hard to imagine such words moving a man who clearly is so spiritually bereft.

In seeking to radically remake the green card process, the administration put the political cart before the legal horse, implementing this ideologically driven guidance with spurious and notably hollow legal justification. The memo ahistorically claims that Congress intended for the stateside acquisition of permanent resident status to be possible only in “limited exceptions,” ignoring with great effort the actual words written by Congress into law that most clearly demonstrated their intent. The agency also strategically cherry-picks out-of-context or nonspecific quotes from various legal sources to provide its policy guidance with the patina of legitimacy and in a fashion that a first-year law student likely could see through.

Despite the administration’s protestations to the contrary, the legal record on adjustment of status is quite clear: Congress created it with the explicit intention of remedying the convoluted system that this policy guidance now seeks to reimplement. A policy pronouncement cannot trump settled law. Furthermore, the ink has long dried on the legal rules directing how discretion should be exercised in the adjustment of status context; over half a century ago, the appellate body of the immigration court system issued a precedential decision (which remains good law today) saying that as a matter of discretion and “[i]n the absence of adverse factors” adjustment of status “will ordinarily be granted.” There is simply no colorable or good faith way for the administration to square the circle of its legally dubious maneuver.

Should the administration’s policy take full effect and be as widespread in application as the memo clearly envisions, the chaos and damage wrought frankly will be cataclysmic for our country. Mixed-status families will be forced to choose between separating themselves and relocating abroad together to avoid such painful separation. Foreign students with promising careers will rethink their American job prospects in favor of more hospitable alternatives. Domestic employers in fields that rely on attracting the best and brightest encouraged by the hope of the American dream will see their hiring dry up and their bottom lines suffer as a consequence. In a time when our country already is experiencing a significant degree of social and economic tumult, intentionally inviting further disruption and pain upon ourselves is frankly irresponsible.

Given the stakes involved here, it is incumbent upon all of us who oppose this illegal, illogical, and inhumane policy to make our voices heard. As Jews, as Americans, as human beings, we must be personally invested in upholding justice and protecting the vulnerable among us. In just the few days following the memo’s issuance, USCIS already walked back some aspects of the guidance in response to the torrent of negative reactions to this change. We must continue pressuring the aAdministration to unwind this destructive policy before irreversible damage is done to both those directly affected and our country as a whole.

It is my ardent hope that with a groundswell of voices drowning out the prominent anti-immigrant advocates in the administration, the better angels of good sense will prevail and this policy will be consigned to the ash heap of history.

Mayor Michael Wildes of Englewood is an adjunct professor at the Benjamin N. Cardozo School of Law; he also will begin teaching at Columbia Law School. He is the author of “Safe Haven in America: Battles to Open the Golden Door”; his second book on immigration is expected to be released this summer.