New book by law professor analyzes federal government’s immigration policy

UNIVERSITY PARK, Pa. — In her new book — titled “Banned: Immigration Enforcement in the Time of Trump," published Sept. 10 — Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, clinical professor of law and director of the Center for Immigrants’ Rights Clinic at Penn State, uses case studies and personal interviews to illustrate her analysis of the current administration’s immigration policy. The book includes a level of legal detail that is unavailable in traditional news accounts, in a way that is accessible to an informed but not expert audience.

In particular, “Banned” analyzes the ways in which the administration has used “discretion” to create and execute its immigration policy.

“Discretion is the power given in certain circumstances to public officials to act according to their own personal judgment,” said Wadhia. “In the case of immigration, discretion refers to the choice a government has to protect, detain or deport immigrants.”

The federal government’s choice to end Deferred Action for Childhood Arrivals (DACA) — which allows the government to defer deportation for qualifying individuals who entered the United States as children — is one example of the use of discretion.

Wadhia interviewed several people who have DACA for her new book. One said this: “I think it’s not so much the effect of the policies that are being enacted which are dangerous and poisonous to our democracy, but it’s the psychological warfare that we’re subjected to on a daily basis. We live in a time where the president can just pick up the phone, send out a tweet, and then you spend the whole day deciphering it.”

The mental toll is significant, said Wadhia, who on Sept. 11 will testify before the Subcommittee on Civil Rights and Civil Liberties within the U.S. House of Representatives on the related topic of deferred action. In her testimony, Wadhia will argue that the U.S. Citizenship and Immigration Services (USCIS) has a long history in handling cases for vulnerable populations and should be allowed to continue to process humanitarian deferred-action cases. 

“My research underscores the long history of the deferred action program and how important it has been to individuals and families,” she said.

Another example of the use of discretion that Wadhia includes in her book is the “Muslim travel ban.” The Supreme Court upheld the travel ban by a decision of 5-4 in June 2018. Wadhia and co-counsel filed an amicus brief, or friend of the court brief, to the U.S. Supreme Court regarding the travel ban.  

She said, “I argue in the book that this ban is unlawful and violates the immigration statute by disallowing people who are in legally qualifying relationships to be here without regard to where they come from.”

Wadhia said that a primary issue with the current administration’s immigration policy is that it goes after “low-hanging fruit.”

“The low-hanging fruit are the people who are compliant and are checking in with the government as they should,” she said. “We are going after the people who have the greatest humanitarian reasons to be here, who have been here for a long time, and who have no criminal history because they’re easier to find. That’s not the way to do immigration enforcement.”

Wadhia has spent her career working on immigrants’ rights issues. She is the founder and director of the Center for Immigrants’ Rights Clinic (CIRC) at Penn State, which serves as a clearinghouse for the community and nation on changing immigration law and policy. 

“The human experience differs vastly,” she said. “Where we are born opens access to privilege for some and hardships for others. I believe that compassion should be the driver in how discretion is used, whether it’s at a macro level, such as a president setting refugee numbers, or at a micro level, such as a line officer on the border deciding whether somebody will be paroled into the United States or detained.”

The book closes with a list of informed policy recommendations.

Wadhia will testify before Congress at the Oversight to Hold Emergency Hearing on Trump Administration Decision to Deport Critically Ill Children at noon on Sept. 11 at 2154 Rayburn House Office Building in Washington, D.C.

“Banned: Immigration Enforcement in the Time of Trump,” is published by the New York University Press.