Annotated version of the White House’s National Security Strategy of December 5:

The Era of Mass Migration Is Over – Who a country admits into its borders—in what numbers and from where—will inevitably define the future of that nation. Any country that considers itself sovereign has the right and duty to define its future.

[This statement, though tinged with implicit racism (“from where”), sort of aligns with the Jordan Commission’s final report issued in the 1990s: “Properly-regulated immigration and immigrant policy serves the national interest by ensuring the entry of those who will contribute most to our society and helping lawful newcomers adjust to life in the United States. It must give due consideration to shifting economic realities.”]

Throughout history, sovereign nations prohibited uncontrolled migration and granted citizenship only rarely to foreigners, who also had to meet demanding criteria.

[“Only rarely to foreigners” conflicts sharply with most of  American history. Abraham Lincoln, for example, welcomed immigrants from non-English sources.  The statement invites comparison with the extremely restrictive immigration policy 1924 – 1965.]

The West’s experience over the past decades vindicates this enduring wisdom. In countries throughout the world, mass migration has strained domestic resources, increased violence and other crime, weakened social cohesion, distorted labor markets, and undermined national security.

[“Weakened social cohesion” –Polls and research by Robert Putnam show that diversity, such as ethnic, reduces trust and a sense of belonging.]

The era of mass migration must end.

[This is ambiguous—does mass migration mean from unfavored countries, or all migration, or something else? If mass migration means large numbers from Latin America, that era – from the 1990s through the Biden Administration – is over.]

Border security is the primary element of national security. We must protect our country from invasion, not just from unchecked migration but from cross-border threats such as terrorism, drugs, espionage, and human trafficking.

[There is no evidence that immigration has brought terrorism, drugs or espionage. This passage smacks of theatrical hypervigilance associated with a myth of purity of the community of citizens. Madison Grant, in his influential The Passing of the Great Race (1916),  framed immigration as a threat to racial purity: “Race feeling may be called prejudice by those whose careers are cramped by it but it is a natural antipathy which serves to maintain the purity of type.”]

A border controlled by the will of the American people as implemented by their government is fundamental to the survival of the United States as a sovereign republic.

[The border takes on a mythic role as some kind of protective armor.]

In Escobar Molina v. DHS (December 2), a federal district court enjoined DHS and ICE from conducting warrantless civil immigration arrests — including sweeps and arresting those standing in Home Depot parking lots — in Washington, D.C. that do not comply with the Immigration and Nationality Act (INA), 8 U.S.C. § 1357(a)(2). That provision allows a warrantless civil arrest only when an officer has probable cause both that a person is in the U.S. unlawfully and that the person is likely to escape before a warrant can be obtained.

After President Trump’s August 11, 2025 “crime emergency” declaration, federal officers launched mass immigration sweeps. An AP-based analysis in the record showed 943 immigration arrests in D.C. between August 7 and September 9, 2025, more than 40% of all arrests in that period.  Officers in plain clothes and unmarked cars often seized people without warrants, without confirming identity, and without asking anything about escape risk.

The government defended this by claiming that civil immigration arrests could be made on “reasonable suspicion,” that its officers were in practice applying a probable-cause standard anyway, and that the presidential emergency and DHS directives justified rapid, sweeping enforcement.  The court rejected all of this, holding that no internal policy or emergency order can override the explicit probable-cause and escape-risk requirements Congress wrote into the INA.

The actual wording in the INA:

“(a) Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—

…

(2) to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;”

Numerous court decisions dating back to 1975 have said that “reason to believe” means probable cause.

Aaron Reichlin Melnick has posted today’s memorandum (12/2/25) from USCIS calling for a suspension of dealing with all asylum applications and all “benefit applications”. The memorandum refers to the June 6 2025 “Presidential Action” which lists 19 counttries of concern. The suspension applies to all 19 countries.

The memoradum does not say that prior approvals are to be reviewed — as President Trump says he wants done. Since Trump is trying the subject the entire foreign-born population to review and possible expulsation, it’s woth spending a moment to parse the law.

“Benefit applications” is a formal term which includes all applications that USCIS adjudicates, including green card and citizenship applications.

As noted a few days ago, immigration law prohibits nationality from using used in specific immigration decisions: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, sex, nationality, place of birth, or place of residence.” The prohibition applies only to “immigrant visas” and not to green cards, citizenship and certain other applications. The focus on immigrant visas (family, employment, humanitarian, diversity) appears to be due to the removal in 1965 of nationality quotas. It would appear that special immigrant visas issues to Iraqis and Afghan are covered by the prohibition. Some 175,000 such visas have been issued.

If the White House wants to achieve its goal of one million deportations per year, it has to streamline the currently bogged down system of interior arrests through deportation of non-criminals. Here in a nutshell is why ICE -driven deportations are so low – at an average rate of about 18 per ICE enforcement and deportation staff person (7,700).

The Trump administration inherited an interior arrest and deportation process, run by ICE, which was very bogged down, and the immigration courts, seriously under-staffed.  (Customs and Border Patrol generally cover arrests and deportation within 100 miles of the border and can use expedited removals).

Interior immigration enforcement under the aegis of ICE shrank over the past fifteen years, while the overall deportation machinery shifted to the border. ICE once removed an average of 155,000 people per year from inside the United States during 2009–2016, but that number fell to 81,000 in 2017–2020 and then dropped again to about 38,000 annually from 2021–2024.

The difficulties start with the arrest. Most ICE arrests end up in Section 240 immigration-court proceedings because the vast majority of people taken into custody have been in the United States for more than two years, have ties here, or assert some form of protection claim, which legally bars the government from using expedited removal.

Once someone is placed into the 240 track, they receive the full due-process process: notices, master calendar hearings, evidence submissions, and often an asylum or other relief claim that must be adjudicated by an immigration judge. This pushes them into the enormous immigration-court backlog, which by late 2024 had swollen to roughly 3.6 million cases. As a result, a newly-filed case often waits years before a merits hearing, and the person typically lives in the community during that time unless ICE chooses to detain them, assuming beds are available.

The administration is recruiting judges explicitly to increase deportation. Even when a judge ultimately issues a removal order, carrying it out is slow and often unsuccessful. Today roughly 1.5 million people have outstanding removal orders that have not been executed. ICE must physically locate the person, overcome limited detention capacity, and secure cooperation from the destination country. Many countries delay or refuse travel documents, making deportation impossible in practice. China, Cuba, India, and Venezuela routinely refuse or delay accepting returnees.

 

Go here and here.

Kyle Cheney in Politico reports on a nationwide judicial revolt against the Trump administration’s policy mandating detention for nearly all immigrants in deportation proceedings. In July, DHS aggressively expanded the conditions under which persons can be detained for violating immigration laws. Over 700 emergency challenges have entered federal courts, with at least 225 judges in 35 states,  including many Trump appointees,  finding the policy likely unlawful and a breach of due process. Only eight judges have sided with the administration.

Per Cheney, at the core of the legal fight is the administration’s reading of the term “seeking admission.” That phrase used to apply mainly to newly arrived migrants at the border. DHS now claims that millions of long-settled immigrants, even those here for decades with citizen families and pending legal claims for normalization of status, still count as “seeking admission” and can therefore be detained without bond. New class actions and appellate rulings, sought by district courts, may soon determine the policy’s fate.

The expansion of definition was made in an internal July 8 memo the full contents of which are apparently not public. It appears to have said the pretty much all persons who “have not been admitted” (regardless of any knowledge or how arrived, or when) are subject to mandatory detention and can be released only through a formal act of granting parole.

Here is a New Jersey court case involving the expanded definition.

 

Trump wants to not only bar persons from certain countries but to remove people from certain countries, even from the entire “third world,” who are legally in the United States.

The White House rhetoric and some technical steps undertaken on November 27 indicate that the administration aims to violate a key provision in law (the Immigration and Naturalization Act) barring nationality-based discrimination Let’s look at Trump’s actions starting in his first administration.

Baseline: how the law reads

“Except as specifically provided in this Act, no person shall… be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” INA § 202(a)(1)(A) (8 U.S.C. § 1152(a)(1)(A)) Immigration and Nationality Act (INA) of 1952 (The McCarran–Walter Act, as amended in1965).

The 2017 “Muslim ban”

The ban on entry from certain countries was initially issued in January 2017. The Supreme Court affirmed the constitutionality of country-wide bans for entry in 2018. (Go here and here).

Trump’s 2024 campaign rhetoric:  attack in principle on countries

Trump’s nationality-focused approach was evident in his 2024 campaign speeches – using terms such as “poisoning” and animals (found here).

“They’re poisoning the blood of our country. That’s what they’ve done. They poison — mental institutions and prisons all over the world. Not just in South America. Not just the three or four countries that we think about. But all over the world they’re coming into our country — from Africa, from Asia, all over the world. They’re pouring into our country.” — Dec. 16, 2023, New Hampshire rally

“They’re rough people, in many cases from jails, prisons, from mental institutions, insane asylums. You know, insane asylums — that’s ‘Silence of the Lambs’ stuff.” — March 4, 2024, interview with Right Side Broadcasting Network

“The Democrats say, ‘Please don’t call them animals. They’re humans.’ I said, ‘No, they’re not humans, they’re not humans, they’re animals’ … Nancy Pelosi told me that. She said, ‘Please don’t use the word animals when you’re talking about these people.’ I said, ‘I’ll use the word animal because that’s what they are.’” — April 2, 2024, Grand Rapids, Michigan, campaign event.

(Collected by the ACLU here)

Trump’s June 6, 2025  list of countries

On June 6, 2025, Trump singled out 19 countries banning or restricting new entries. : Fully banned (12 countries): Afghanistan; Myanmar (Burma); Chad; Republic of the Congo; Equatorial Guinea; Eritrea; Haiti; Iran; Libya; Somalia; Sudan; Yemen. Partially restricted (7 countries): Burundi; Cuba; Laos; Sierra Leone; Togo; Turkmenistan; Venezuela

The common rationale was that the country government was not trustworthy in dealing with the United States on immigration matters. The halt was not explained in terms of criminals, mis-fits.etc.

November 27/28, 2025: wholesale attack on all migration from third world countries, including cancelling green cards

 Trump on X: “I will permanently pause migration from all Third World Countries to allow the U.S. system to fully recover, terminate all of the millions of Biden illegal admissions, including those signed by Sleepy Joe Biden’s Autopen, and remove anyone who is not a net asset to the United States, or is incapable of loving our Country, end all Federal benefits and subsidies to noncitizens of our Country, denaturalize migrants who undermine domestic tranquility, and deport any Foreign National who is a public charge, security risk, or non-compatible with Western Civilization.”

Trump on Truth Social. “I will permanently pause migration from all Third World Countries to allow the U.S. system to fully recover,” he wrote on Truth Social…..Only REVERSE MIGRATION can fully cure this situation.” (Go here.)

Joseph Edlow, director of U.S. Citizenship and Immigration Services, wrote on social media that he had been directed to conduct “a full scale, rigorous reexamination of every Green Card for every alien from every country of concern.” (press report here.)

November 27, 2025 higher denial rates based on country of origin

USCIS issued instructions to staff adversely take into account the person’s country of origin for any step in the process of entry and stay, green card issuance, etc. It does not affect assessment of an application for citizenship.

To meet the White House’s goals to remove upwards of one million persons (out of a total of about 14 million) this will largely be the work of ICE enforcement in the interior.  I’ll post shortly a historical analysis of interior deportation (“removal”). Here I address a significant relaxation of constraints on ICE discretion as to who to arrest and detain.  Photo and video images of overuse of force by masked personnel in public spaces have created a trademark of the deportation campaign.

I posted in June commentary on ICE’s legal discretion to arrest and detain persons. In September ICE was granted a green light to expand its scope for arrests. It is using latent power granted in the past to detain persons. One can infer that the replacement of ICE officials by CBP officials was done because the law enforcement culture of ICE is less amenible to seize every opportunity and stretch legal boundaries. (See the Gregory Bovino case.)

Whom to arrest

Before the ruling in Noem v. Vasquez Perdomo and concurrence by Brett Kavanaugh (in his opinion on Sept. 8, 2025, the law on immigration arrests under the Fourth Amendment was settled by United States v. Brignoni‑Ponce (1975). That held that “Mexican appearance … standing alone does not justify stopping all Mexican-Americans to ask if they are aliens.” In his concurrence Kavanaugh reaffirmed that “apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered along with other salient factors.”

Justice Kavanaugh wrote that ICE officers make “rapid, on-the-ground assessments” in settings where citizenship and immigration status are not visible. He wrote that the Constitution does not require officers to ignore “common indicators that may bear on probable cause or reasonable suspicion,” and that ethnicity, national-origin appearance, or language may be among those indicators when combined with other facts. Accordingly,  federal immigration officers are permitted to consider “the totality of the circumstances,” and ethnicity “cannot be categorically removed from that set of observable circumstances.”

The effect of that shift was to give ICE discretion which it has used as follows. ICE raided a Chicago South Shore apartment, including baroque expressions such as men scaling down from a hovering helicopter.  In Charlotte, North Carolina ICE has performed sweeps near Home Depot sites.  It strikes me that ICE is using its broader discretion to not just arrest persons but to instill fear in city, as evidenced by significant sudden declines in school enrollments.

Power to detain

The key point is that there is nothing expressly stated in law that prohibits ICE from detaining persons on the grounds of a suspected immigration law infraction, however minor. ICE has received no new authority; it is just maximizing its to-date latent power.

In the past, ICE detained tended to detain persons only if they had a criminal record. There no way that ICE can meet one million a year deportations by relying only or even mostly on capturing persons with a criminal record, or even those with removal orders. ICE  appears to be using detention to not only increase its numbers of those in detention but also to instill fear. It appears to be willing to accept a large number of “false positives” in its arrest and detention practices – that is, to grab persons who are not subject to removal and may only have committed a civil violation – being in the country without authorization.

The governing statute is 8 U.S.C. §1357(a)(2). Per this provision an immigration officer may arrest a noncitizen without a judicial warrant if the officer has “reason to believe” the person is in the U.S. in violation of immigration law and is likely to escape before a warrant can be obtained. This is a civil arrest authority and it allows ICE to seize someone on the spot during workplace raids, home operations, traffic-stop referrals, or collateral encounters.

After the arrest, ICE satisfies the “warrant” language in INA §236 by issuing its own administrative arrest warrant—Form I-200—which is signed only by an ICE supervisory official, not a judge. The combination of §1357(a)(2)’s warrantless-arrest power and the internally approved I-200 is what enables ICE to detain large numbers of people based solely on suspected civil immigration violations.

Typical ICE encounters 

Reported on X: ICE surrounded judge’s car, threatening to smash windows, then detain his high school intern. Agents handcuffed teenager to arrest him, until judge fights loudly to demand they check ID to confirm they have the wrong person. Court security noticed masked men sneaking pictures of the boy, so the judge stepped up to offer him a ride home because he was so scared he was visibly shaking. After a heated argument, ICE agents finally admit they made a mistake and just quietly left the courthouse empty handed. Judge Joseph J Mcburney is an Associate Justice of the Rhode Island Superior Court, located in Providence, RI. November 23, 2025.

Reported on Politico: In Charlotte, CBP officers entered the Myers Park Country Club, one of the City’s oldest country clubs, without prior notice, warrant or permission and briefly detained an employee. The club, according to the manager, sought legal advice to “ensure privacy, security and well-being of out employees and members.” (This from a article about how an ICE campaign in the City was riling up Republicans.)