Illegal immigration has been a dominant issue in national politics for the better part of two decades. But issues involving lawful migration—from the number of work visas allotted to the tech sector to the arrest of students alleged to have been active in protests to the fate of political refugees allowed into the country—have become just as visible a part of the political debate. We asked Juliette Kayyem, the Robert and Renee Belfer Senior Lecturer in International Security, to help us understand what lawful immigration is, how it is governed, and how recent changes in policy and enforcement will impact people living in and traveling to the United States. Kayyem is director of the Homeland Security Project at the Belfer Center for Science and International Affairs and worked on homeland security in the administrations of President Barack Obama and Massachusetts Governor Deval Patrick.
Q: What is lawful immigration? What are the different types of lawful migration?
Kayyem: It is important that we talk about lawful migration because our political debates tend to be focused on unlawful migration or what we would call border crossings. The United States functions and survives on lawful migration. That would include tourists as well as what we call status visas: students, H1B workers, or people here for seasonal work in the summertime. Those visas all have different rules, but they are all considered lawful migration that we want to welcome because we need them for a variety of reasons.
One of the most interesting dynamics of lawful and unlawful migration is that if you listen to the political discourse in the United States, you would think that unlawful immigration comes through the border and lawful immigration comes through other means. But most unlawful migrants in the United States, more than 60%, have come here under lawful status and just stayed. So they either came here on some sort of employment visa or some sort of student visa or even a tourism visa and then never left.
The status of permanent residents is different because those are people who are committing to permanent lawful status eventually. The problem is, of course, all of our systems take a while, and so we really do view permanent residents as those who have made what we call a fundamental relationship with the United States. We consider them as part of the family, so to speak, and they consider themselves as part of the family. Many permanent lawful residents are en route to permanent status, passport holding citizenship, and this is just the status that they’re in.
So really when you think about immigration, you can think about two different pools: unlawful and lawful, and then each of those has subsets of how they got here, how long they’re going to be here, what are the conditions of their stay here. So someone here seeking asylum is here lawfully if that’s recognized by a court, but could be viewed as unlawful if they don’t have their asylum status recognized by a court.
Q: What are the legal rights of non-immigrants? What is the legal framework that governs those rights?
Kayyem: The rights and privileges one has in this country depend on their immigration status. You could think of an American-born U.S. citizen as having the fullest rights and then everyone else in concentric circles around them. A helpful way to think about the rights one has is also where are you asserting those rights, and the border versus the interior becomes your dividing line.
At the border, all of us have fewer rights. United States citizens cannot be deprived access to the United States, but you can be asked questions that you wouldn’t normally be asked when you come in from another country: Where were you? Who were you staying with? Did you meet anyone? The border is essentially where rights are more limited, and they are exceptionally limited for immigrants or anyone on a status visa.
A foreign student who has a visa to be here has very few rights when they are at the border entering the United States. We now have countries in the world warning their citizens that even if they have a visa, entry into the United States is not guaranteed and U.S. customs and border patrol officials have tremendous authority over non-U.S. citizens at the border. Entry on a status visa is not a right, it’s a privilege, and someone can take it away and you don’t get due process, period.
What rights does someone have to due process to stop a government action against them? That’s going to depend on their status. A U.S. citizen, obviously has all the rights that we understand. A permanent lawful resident is pretty close to a citizen. And various visa standards are a little bit more difficult. You’re seeing that with students. Are there conditions to the status of international students that allow them to be deported without due process? This is relatively new in the courts because generally if we had a problem, say with a student who committed a crime, you would simply rescind their visa and have them leave.
But there’s a performative nature to a lot that is happening in the United States right now. Taking students who aren’t violent, surrounding them with Immigration and Custom Enforcement agents, or whisking people out in the middle of the night: that doesn’t really align with the law, and that’s why you’re seeing all these cases end up in court and seeing the Trump administration lose some of these cases.
“At the border, all of us have fewer rights. ... United States citizens cannot be deprived access to the United States, but you can be asked questions that you wouldn't normally be asked: Where were you? Who did you stay with? Did you meet anyone?”
Q: Can the status of citizens, permanent residents, or status visa holders be changed by the government?
Kayyem: The United States has very limited authority to change someone’s legal citizenship status. If you’re a U.S. citizen, you’re a U.S. citizen. What we’re starting to see is a very, I would say, creative interpretation of the law by the State Department in which they are using a rarely invoked statute to claim that a non-citizen is a foreign policy threat to the United States. This was intended not as a sweeping rule, but one that was given to the U.S. secretary of state decades ago and that was sparingly used.
Additionally, the students aren’t being sent back to their home country. They’re being sent to prisons in Louisiana. So once again, part of this is the sort of performative, draconian aspect of immigration enforcement that’s consistent with the policies of the administration. The administration is also using rarely used and often maligned laws, like the Alien and Sedition Act, to detain and then transport to a third country people it claims have committed crimes, even though they haven’t been given due process—for example, the group of Venezuelan men who are now sitting in an El Salvadoran prison. And the Trump administration has made mistakes about at least one of those men.
These types of efforts to expel people without due process based on unreviewable assertions by the executive branch is wholly new. You’re starting to see the courts push back on that. We have a concept of due process afforded to people in the country because the government makes mistakes, and we’re seeing a government that made a big mistake.
Q: Are any of those performative actions illegal?
Kayyem: No. The performative nature is consistent with the way they want the world to see them. They also want people to engage federal law enforcement. That then helps them with this narrative that this is a lawless country. They know everything is being recorded.
Q: What’s the political landscape in the area of law migration in the United States? What areas of agreement flag points? Are there areas of agreement? Is there a reform?
Kayyem: We’re in the early days still, so it’s hard to know where the middle ground is, but here is where I think it’s heading on both sides. The Biden administration realized way too late, six months before the end of the term, that the border crisis was real, that the caravans were not a creation of Fox News, that asylum had been abused, and those seeking asylum had been abusing it because of a pretty loose standard. And they got tighter on it. It was the right thing to do, and you saw the numbers of immigrants go down. But they got criticism from their left. So on the Democratic side, you’re going to start to see a move away from what was caricatured as open borders (and often actually seemed like open borders.)
Here’s where you’re going to start to see the right head to the center. You are going to have farmers not able to pick or cultivate their farms. You’re going to have rich hotel owners not be able to get help for the summer. You are going to have a trillion-dollar tourism industry impacted by the fact that over half a dozen European countries and Canada have issued travel alert warnings to their travelers to the United States. We’ve seen an astronomical drop in the number of Canadian visitors because they’re self-boycotting. You’re seeing lower number of Chinese and European visitors. That’s going to have tremendous economic effects.
Q: What new policies or actions has the Trump administration undertaken or signaled that it would undertake? Has there been a change of policy of enforcement or something else?
Kayyem: The way to think about the Trump immigration policy is enforcement at the border, enforcement in the interior, and then what I might call the atmospherics. Enforcement at the border is just much tougher. Part of that is because the flows are starting to decrease, and part of it is because access to the United States is a little bit harder. You’re seeing a recommitment to the wall, a deployment of National Guard and military efforts to stem the flow of unlawful migrants across the border.
On the lawful migration front, you’re seeing a lot of uncertainty right now, and this is why the court battles are coming into play on everything from asylum to student visas. That’s where you’re seeing some of the real pain points—those are the heartstring stories where someone’s been here 20 years, they never regularize their status, they’ve never had a criminal record, and they’re gone. I mean, we’re just essentially disappearing people. That is also true on the question of foreign students and First Amendment activity. And I think the focus on Palestinian and Arab students right now is not a coincidence.
The third piece is of course, the performative part, or the part for public consumption. That’s Homeland Security Secretary Kristi Noem traveling to the El Salvador prison. That’s Secretary of Defense Pete Hegseth standing at the border. It’s the language and the confusion and the way that they talk about it. And that also has an impact. It has an impact not only for those who might come here unlawfully, but as we’re starting to see it has an impact for those who want to come here lawfully. There’s a consequence to being unwelcoming, and you may want that consequence, but it’s going to be over-broad and it’s going to impact the kind of migration that this country survives on.
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Banner photograph by Scott Olson/Getty Images; portrait by Martha Stewart.