Trump's invisible wall: how his 2018 immigration policies built a barrier

Little has been done to fulfil Trump’s promise of a border wall, but behind the scenes, his administration continues to enact changes to make immigration more difficult

While Donald Trump celebrated the supreme court decision to uphold his travel ban and Americans prepared to protest against his family separation policy this summer, a US immigration agency quietly shared a memo that set off alarms for immigration activists and attorneys.

The memo was wonky and complicated. The policy it announced wouldn’t come into effect for months.

And while it represented a fundamental change in how a key immigration agency operates, it slipped past most people’s radar, joining a flurry of quiet policy changes that have made legal and illegal immigration to the US more difficult without many noticing.

“It is breathtaking, how sweeping and deep the policy and legal changes are that this administration has ushered in within a period of just two years,” Gregory Chen, director of government relations for the American Immigration Lawyers Association (AILA), told the Guardian.

These changes hit every angle of the immigration system, from assailing humanitarian protections with the family separation policy to restricting workers travelling on the so-called “high-skilled” H-1B visa with a plan to revoke their spouses’ work permits.

“While the border wall is what this president talks about so much to the media, behind the scenes his administration is constructing all sorts of policies that are erecting an invisible wall,” Chen said.

To glimpse the sheer scale of these efforts, consider the final week of November.

• The US government closed the busiest land border crossing in the world for five hours after dozens of Central Americans rushed the border.

• The Department of Homeland Security (DHS) asked the military to keep troops at the border through January, after the military had already spent $72m to send nearly 6,000 to the border.

• DHS also asked civilian police to be sent to the border.

• A federal judge refused the US government’s request to enforce an asylum ban he said the government had not proved was legal.

• Another judge ruled the US government could not force states and cities known as “sanctuary cities” to cooperate with federal immigration authorities to receive federal funding.

• Trump tweeted a lie about the federal assistance undocumented immigrants receive.

• Baltimore sued the Trump administration over a proposed immigration rule.

• The US health department’s internal watchdog said it was concerned staff at a teen migrant shelter had not been adequately vetted.

• Outside of Trump administration rumblings in courts and the Capitol, a Pew Research report released that week showed the number of undocumented immigrants in the US was at the lowest level since 2004.

• And a nurse deported to Mexico in 2017 returned to the US after getting a visa to enter the US legally.

Anu Joshi, the New York Immigration Coalition’s senior director of immigrant rights and policy, said because so many of these changes are happening administratively, there is little accountability and oversight.

“The thing that is most striking is how almost surgical in precision they’ve been with making these administrative and policy level changes that really, really impact for the negative people’s lives,” Joshi said.

These changes are often too bureaucratic for the average American, leaving immigration advocates and attorneys struggling to drum up interest or outrage from the public.

This is what happened with the memo issued in June during the family separation debacle. It said in October US Citizenship and Immigration Services (USCIS) would greatly expand its ability to order people to appear in court if their applications for immigration relief – such as green cards or humanitarian visas – were denied.

Combined with other new directives at USCIS, this means a human trafficking victim who is missing a document in their visa application could not only be denied the visa, but they may also be put in deportation proceedings .

“It [the memo] really didn’t get very much coverage because there are so many other things happening, but that is going to have a profound impact on people’s ability to seek safety in this country,” Joshi said.

USCIS spokesman, Michael Bars, said people applying for such visas can still challenge the agency’s decision to deny an application and emphasized that it relies on trained officers to rule on each individual case.

“Ensuring that individuals who are subject to removal are placed in proceedings is fidelity to the law,” Bars said. “Each year, immigration benefits are attainable for many law-abiding individuals legitimately seeking greater opportunity, prosperity, and security as newly entrusted members of society, and to this end USCIS takes great pride and helping these dreams become a reality.”

For people such as Joshi who work on the frontlines of immigration activism and law, the whirlwind of changes has inspired constant legal action.

One day after the White House announced it would bar people from seeking asylum outside designated ports of entry, the American Civil Liberties Union (ACLU) filed a lawsuit against the ban.

One month before the Trump administration formally announced its zero-tolerance policy that made mass family separations possible, ACLU lawyers had brought a lawsuit on behalf of at least 429 parents who alleged separations had already happened.

In November, a court ruled the Trump administration must continue a program for undocumented people who came to the US as children, known as Dreamers, which allows them to go to college and work temporarily in the US. That case is almost guaranteed to head to the supreme court, more than a year after the Trump administration said it was ending the program.

Joshi cautioned that issues that end up at the supreme court will be determined by nine justices that include two Trump appointees. “I think the courts are a necessary, temporary, protective measure, but I don’t think we can rely on the courts to save us,” Joshi said.

The revised travel ban, after all, was held up by the supreme court in June despite being one of two immigration issues that brought Americans nationwide to the street in protest. The other issue that inspired such outrage, family separations, could happen again, as the Trump administration has floated reviving the practice in a different form.

And while Trump is heading into the new year without funding for his border wall despite his demands having shutdown 25% of the US government over the holiday period, there are no indications the pile of policies shaping the invisible wall will slow.

Chen of AILA said: “The administration’s train is just getting out of the train station and is moving at a rapid clip at full steam ahead.”

• This story was updated on December 27 2018 to clarify the scope of the new USCIS guidance