New president poised to greatly affect immigration, UB law professor says

How will the next president affect immigration in the United States? The short answer, UB legal scholar John H. Giammatteo says, is overwhelmingly.

Giammatteo, who studies immigration law and how civil procedure affects the administration of justice, says it’s important to understand immigration as a broad and diverse set of issues.

“Both parties have developed policies — I think misguided and of questionable legality — to try to prevent asylum seekers and others from crossing into the United States,” says Giammatteo, who has represented clients in the U.S. Court of Appeals for the Second Circuit, which reviews federal appeals from cases in Connecticut, New York and Vermont.

“But there are a host of other issues that are perhaps less visible, but very important. The dysfunction of the immigration court system, for instance, or long delays in granting visas to immigrant workers, or family members of United States citizens or permanent residents,” he says. “People may not necessarily be voting with these issues in mind, but the president has a massive amount of control over these areas. And whether we get reform in these areas, or whether those reforms are in line with our values and needs as a country, hinge on who is in the White House.”

Much of this nuance is lost at election time, Giammatteo says, with campaigns often discussing these issues in the abstract, or framing immigration as a problem.

“But when things are concretized, and the violence in the immigration system becomes clear, many people are often outraged,” says Giammatteo. “They don’t actually want mass deportations of their neighbors, or DACA (Deferred Action for Childhood Arrivals) rescinded, for instance. They don’t want Immigration and Customs Enforcement agents busting down doors in the middle of the night. We saw this during the Trump administration with family separation. The backlash was swift and fierce to the perceived inhumanity.”

A better way to address immigration, Giammatteo says, is to examine humanitarian, social and economic consequences.

“Given the rhetoric, I think many people fail to understand that a large percentage of those crossing the southern border are doing so because they’re fleeing persecution or torture,” he says. “But as a country, we have taken on important commitments — under both international and domestic law — to allow people fleeing torture and violence and persecution to try to claim asylum within the United States. Both Biden and Trump have restricted access to asylum for those who need it.”

Another problem is the immigration court system.

“The courts are really flailing,” Giammatteo says. “The immigration courts are also administrative courts. They are controlled by the attorney general, subject to his or her political whims; judges are not independent in the way that we normally require of courts hearing such important cases.”

He adds: “The courts are backlogged, and there are long delays in adjudication. That was true before the Trump administration, but it was aggravated by a set of policies and changes that completely undermined the courts’ ability to function, and they’ve been limping along ever since. The Biden administration has hired a lot more immigration judges, but things still are under-resourced.”

The quality of judicial decision-making is often arbitrary, he notes.

“An individual asylum seeker’s chances to receive asylum may vary 50, 60, 70% based solely on which judge they happen to draw. And in most circumstances, noncitizens are navigating this complex legal landscape without a lawyer and in a second language with notoriously poor interpretation services.”

Other immigration issues that don’t receive much attention, he says, are labor migration, family visas and laws often regulated by U.S. Citizenship and Immigration Services. And there are states, such as Texas, which are taking actions that Giammatteo says undercut the federal government’s authority on immigration.