Immigrant Rights Attorneys Set For Battle As Trump Returns

By Marco Poggio | January 24, 2025, 7:01 PM EST ·

asylum seekers huddled against wall

Asylum-seekers wait at the Mexico-U.S. border in Tijuana. President Donald Trump has stopped asylum-seekers from entering the country as part of a raft of executive orders meant to curtail immigration. Trump's anti-immigrant measures have legal aid organizations across the country bolstering their resources and preparing to fight a surge in deportation cases. (Photo by Guillermo Arias / AFP) (Photo by GUILLERMO ARIAS/AFP via Getty Images)


As election night results began trickling in, pointing to the imminent return to power of President Donald Trump, Karla E. Aguayo, the legal director of a Los Angeles-based legal aid provider for immigrants called CHIRLA, began to cry.

Unlike in 2016, when she was shocked by Trump's win, Aguayo was not surprised in November, but she said she still found herself in disbelief that so many voters were willing to support his large-scale plans to detain and deport noncitizens.

"It was a lot of tears," Aguayo, the daughter of Salvadoran immigrants, told Law360. "This time, it was a sense of frustration and a sense of hurt."

In the days following Trump's electoral victory, Aguayo began receiving phone calls from clients, some of whom have lived in the United States without a legal status for decades. "What am I going to do? What's going to happen? Should we just leave on our own?" were some of the things she heard them say.

As a new era of hard-line immigration policies began this week with executive orders seeking to rip holes in birthright citizenship and stopping asylum applications at the border, legal aid providers like CHIRLA, or the Coalition for Humane Immigrant Rights, say they are ready to defend noncitizens from deportation.

"We're not preparing people to leave this country. We're not preparing anyone for deportation. We're preparing our communities to stay and remain in the U.S.," Aguayo said.

In the face of the sweeping changes proposed by Trump, legal aid organizations across the country are responding by bolstering their resources and increasing outreach efforts to prepare for an expected surge in deportation cases. Many are training more staff, expanding their pro bono networks, and collaborating with community organizations to ensure that noncitizens, especially those in vulnerable populations, receive timely legal advice and representation.

Hours after being sworn in, Trump signed an executive order aiming to end birthright citizenship for children born in the U.S. to unauthorized immigrants and those on temporary visas. The order, which applies to children that will be born on U.S. soil one month after the order's date, is already facing legal challenges.

A federal judge in Seattle on Thursday blocked the executive order for 14 days in response to a lawsuit filed by four states — Washington, Arizona, Oregon and Illinois — arguing it violated the 14th Amendment to the Constitution and the Immigration and Nationality Act. In his order, U.S. District Judge John C. Coughenour of the Western District of Washington called Trump's order "blatantly unconstitutional."

As of Friday evening, six lawsuits, including one lodged by 18 other states, had been filed challenging the order. Immigrant rights groups blasted the executive order as unconstitutional and described birthright citizenship as a cornerstone of democracy. 

Representatives for the White House did not respond to a request for comment.

In another executive order issued on his first day in office, Trump declared a national emergency at the southern border, authorizing the deployment of armed forces there and the construction of physical barriers to stop the flow of migrants.

Other executive orders suspended refugee resettlement programs for at least four months, and instructed agencies to "vet and screen to the maximum degree possible all aliens who intend to be admitted, enter, or are already inside the United States."

Trump also terminated humanitarian parole programs that allowed migrants from certain countries to enter the U.S. for urgent humanitarian reasons, and ended the practice of releasing apprehended unauthorized immigrants into the U.S. while they await immigration proceedings, commonly known as "catch-and-release."

Trump said he will deport millions of unauthorized immigrants as part of the largest immigration crackdown in U.S. history. To do so, he said he will build new detention facilities to hold them while their cases are processed.

During a recent news conference previewing their response to the crackdown on noncitizens, American Civil Liberties Union attorneys said they are ready to challenge Trump's policies in court — and in fact, the organization has already done so, filing one of the suits challenging the birthright citizenship executive order. The attorneys pointed to litigation that successfully halted a travel ban directed at people from mostly Muslim countries during Trump's first administration.

"We are battle-tested, and we know how to win," said Edgar Saldivar, a lawyer with the ACLU of Texas.

ACLU attorneys said they are expanding their "know your rights" presentations to inform as many immigrants as they can of their constitutional rights in case they are confronted by U.S. Immigration and Customs Enforcement officers. They also are continuing lobbying efforts in state legislatures where they are demanding protection for noncitizens.

They also are ready to challenge the implementation of laws, such as the ones recently passed in Texas and Arizona, that seek to bring federal immigration enforcement under the purview of the states by, for instance, creating state criminal penalties for illegal entry, or requiring immigrants to provide document verification to obtain public benefits.

On Tuesday, Trump revived a policy, known as expedited removal, under which immigration authorities can arrest and deport unauthorized immigrants who cannot prove to an officer that they have been on U.S. soil for at least two years.

The policy, which had been rescinded by the Biden administration, was used primarily near the border. But in a notice issued Tuesday announcing the return of expedited removal, acting Secretary of Homeland Security Benjamine C. Huffman said the policy will be applied to any noncitizen apprehended anywhere in the United States.

And in a statement Tuesday, DHS said it was allowing immigration officers to make arrests in "sensitive" areas — including schools, hospitals and places of worship — undoing another Biden administration directive that limited arrests in those locations.

The scale of Trump's deportation plans represents perhaps the hardest challenge ahead for nonprofits.

Harold Solis, the co-legal director at Make the Road New York, a legal aid and advocacy nonprofit, said he expects ICE to return to the aggressive enforcement tactics it used during the first Trump administration, including raids in workplaces, places of worship and in public places such as courthouses. Mass detention and deportation of noncitizens and Trump's ban on birthright citizenship will create a massive need for litigation.

"I anticipate that we will be dealing with multiple issues at once in the immigration area and that will require additional resources," Solis said. He added that he hopes that the growing need in immigrant communities will encourage the broader legal industry, including law students and private attorneys looking to do pro bono work, to step in and offer support.

Attorneys expect the Trump administration's crackdown will cause some unauthorized immigrants to leave the country voluntarily out of fear, or for lacking the will and resources to shield themselves from deportation.

Lilah Thompson, the supervising attorney of the Pennsylvania Immigrant Family Unity Project, a publicly funded defense counsel program for detained immigrants operating in Philadelphia and Pittsburgh, said ICE will target noncitizens regardless of whether they have a criminal record.

"This creates a lot of fear in our communities and causes people to want to isolate, to hide, and that is not what we want," she said. "I would like for people to not just be living in fear of what's to come, but to understand what their options are and be able to make decisions for themselves."

The day after the election, Thompson said she received about 20 phone calls from clients, including former noncitizens who have been naturalized, worried about what a new Trump presidency could mean for them.

"That is the fear machine, and that is what this administration wants," she said. "Just people absolutely terrified about what's to come."

There are about 240,000 immigrants living in Philadelphia, and about 47,000 of them are unauthorized. The city, which has one of highest levels of immigration enforcement in the Northeast, has a $500,000 budget to pay attorneys in immigration defense proceedings. Thompson said that amount is insufficient to assist all individuals needing legal representation.

Legal experts say the role of an attorney in helping people navigate the immigration system, which is notoriously complex and ever-shifting, is essential to their prospects of avoiding deportation, obtaining a visa, and securing a legal path to remain in the country. In removal hearings in particular, the consultation with a lawyer is the single most impactful factor in ensuring people get a fair review of their case, studies show.

Organizations such as the Vera Institute of Justice, which coordinates a nationwide network of legal aid nonprofits providing no-cost representation to immigrants, are pushing for states and localities to establish a right to an attorney in deportation proceedings similar to the one that exists in criminal cases. Under the Constitution, people are entitled to legal representation at the government's expense only in criminal proceedings.

Shayna Kessler, who directs the Vera Institute's advocacy for universal representation, said Trump's policies will separate families, destabilize communities and harm the economy, and that investing in legal defense for noncitizens is more critical than ever, given the scale of his plans.

Currently, 55 jurisdictions ranging in size from states like New York and California, to major cities like New York City, to small counties and municipalities, have government-funded deportation defense programs.

Immigrant rights advocates in New York, including nonprofits like Make the Road and Vera Institute, as well as local and state elected officials, are lobbying to increase state budget funding for representation in deportation proceedings from $64.2 million to $165 million. A similar effort is taking place in California.

Kessler said additional funding for deportation defense programs is necessary to hire more attorneys specially trained in immigration law. She said the Vera Institute and its partner organizations will continue to push for federal legislation that would secure publicly funded legal representation for people subject to deportation.

"We have some proven policies that can support and defend people and support strong economies, united families and stable communities at this time. Universal representation is one of them," Kessler said.

The Fairness to Freedom Act, a proposed federal law that would have created a right to counsel in immigration court was reviewed by judiciary committees in the House of Representatives and Senate last year but failed to advance.

A second proposal, the Securing Help for Immigrants through Education and Legal Development — or SHIELD — Act would instead allow the DOJ to provide grants to states, local governments, and nonprofit organizations to fund the recruitment and training of attorneys and social workers helping immigrants who face deportation.

But legal experts say those bills are long shots as the federal government is now fully controlled by Republicans.

"Those bills are not going to be enacted any time soon … and even if they were, it would not solve the problem," said Stephen Yale-Loehr, a professor at Cornell Law School.

In fact, the new Congress seems poised to support Trump's mass deportation agenda.

On Wednesday, the House passed a bill — the Laken Riley Act — that would require federal law enforcement officers to detain unauthorized immigrants who are charged with offenses such as burglary, theft, larceny, shoplifting and assaulting a police officer, or crimes resulting in death or serious bodily injury.

The law is named after a 22-year-old Georgia nursing student who was killed last year by a Venezuelan immigrant in the country illegally. Before he murdered Riley, Jose Antonio Ibarra had been arrested for shoplifting but was never detained by immigration officers.

Public sentiment about immigration has also shifted toward a tougher approach in recent years, with many voters expressing frustration about the influx of migrants at the border and into large cities, which peaked during the Biden administration.

For instance, an Axios/Ipsos poll surveying about 1,000 people Jan. 10 through 12 found that 66% of Americans — including 43% of Democrats — support deporting noncitizens who are in the country illegally.

Without political support in Washington, experts say, legal defense for immigrants will have to come from state and local governments.

Analysts expect the Trump administration to drastically expand interaction programs between federal immigration authorities and local law enforcement agencies that are used to round up unauthorized immigrants. One such program, authorized under Section 287(g) of the Immigration and Nationality Act, deputizes sheriffs and local police departments to act as ICE agents, with authority to screen people to verify their immigration status, and also to detain them and to charge them with immigration law violations.

Trump also said he will empower federal prosecutors to aggressively prosecute people who cross the border illegally, which is a civil offense, not a criminal one.

During her confirmation hearings in the Senate, Trump's attorney general pick, Pamela Jo Bondi, appeared ready to support that plan, adding that Americans are suffering the consequences of what has been described as uncontrolled migration at the southern border.

"American citizens are paying the price every single day," she said.

And the DOJ announced it will prosecute city and state officials that try to oppose the Trump administration's immigration measures.

Greg Chen, the senior director of government relations at the American Immigration Lawyers Association, or AILA, which has about 17,000 members nationwide, said attorneys are expecting dramatic changes in law and policy coming from the White House and Congress, adding that the scale and magnitude of Trump's executive orders likely will increase.

"More people are going to be subject to severe and extreme forms of enforcement activities that are likely to violate the Constitution, U.S. law and basic values in terms of how you treat people humanely," Chen said, adding the right to an attorney in deportation proceedings should be guaranteed by the federal government.

AILA is preparing its members to confront the new legal landscape shaped by Trump's executive decisions with frequent conferences and webinars, Chen said.

"Attorneys who are representing people who are facing immigration enforcement need to be much better prepared to educate their clients about what kinds of emergency measures they could take if they are suddenly picked up off the street and don't have the opportunity to have a fair hearing," he said, adding that the "night-and-day shift" in immigration policy under Trump will put additional workload on lawyers.

Immigration lawyers are widely known in the legal industry to experience high levels of stress and burnout, in part because they are forced to catch up with frequent changes in policy, but also because they often share the emotional toll of their clients that expose them to stories of violence, poverty and grief.

"We've had a lot of attorneys already receiving many more calls from existing clients and new clients asking for help, and that just means more case volume coming in," Chen said. "We are doing everything we can, and we've been preparing attorneys for how they manage that kind of burnout."

Experts say Trump will also attempt to limit legal immigration as well.

During the first Trump administration, there were slowdowns in the processing of employment-based, family-based, and humanitarian visa applications. Employers were waiting twice as long — many more months — to get approvals for foreign workers. Family members had to wait longer to be reunited. Immigration attorneys expect a similar effect on visa applications during Trump's second term, Chen said.

"We will see the immigration system operate much less efficiently and effectively," he said. "People are asking about how they can manage this moving forward."

As the legal battles intensify and deportation crackdowns escalate, immigrant rights groups remain steadfast.

Nicole Melaku, the executive director of the National Partnership for New Americans, a coalition of 83 immigrant rights nonprofits spread across 42 states, told Law360 that most Americans do not understand the human consequences of mass deportation — children losing their parents to another country they have never seen, people's livelihoods being ripped away, people sitting in detention for weeks on end.

"This is another chapter in the story of America, and it really is defining our moral compass on what kind of country we want to be," Melaku said. "I am the daughter of an immigrant, the granddaughter of a farmworker, and I believe in something different for this country, and I'm willing to fight for that."

--Editing by Orlando Lorenzo.

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