The Assault on Legal Immigration: How Nationality-Based Discrimination Threatens American Values

Executive Summary and Context

The Trump administration is preparing to implement a radical policy shift that would fundamentally alter how the United States processes immigration applications from individuals from specific countries. According to internal documents from the Department of Homeland Security reviewed by The New York Times, U.S. Citizenship and Immigration Services (USCIS) plans to consider “country-specific factors” included in President Trump’s travel ban as “significant negative factors” when reviewing applications for green cards, asylum, parole, and other immigration statuses that require discretionary analysis.

This policy represents a major expansion of the administration’s ongoing efforts to restrict immigration from countries that it claims lack sufficient screening and vetting capabilities for official documents. The change would primarily affect immigrants from twelve countries currently subject to the travel ban: Afghanistan, Chad, Republic of Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Myanmar, Somalia, Sudan, and Yemen. Additionally, partial restrictions would apply to citizens from seven other countries: Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela.

The Policy Mechanics and Implementation

The proposed policy change would apply to applications requiring “discretionary analysis,” where immigration officers assess both positive and negative factors before approval. Importantly, this change would not apply to citizenship applications, but would significantly impact those seeking permanent residency, asylum, and other critical immigration benefits. The administration justifies this approach by citing concerns about some countries not sharing adequate vetting information and lacking robust systems for issuing passports and official documents.

This policy follows the Trump administration’s pattern of narrowing legal immigration pathways. Last month, the administration reduced the number of refugees admitted to the United States while specifically reserving slots for mostly white Afrikaner South Africans, raising additional concerns about racial and ethnic discrimination in immigration policy.

Expert Perspectives and Institutional Concerns

Immigration policy experts quoted in the article express grave concerns about this proposed change. Doug Rand, a former senior official at USCIS during the Biden administration, called the policy “absurd” and “a radical change.” He emphasized that this policy would affect individuals who have already undergone national security screening and received legal authorization to reside in the United States, essentially “reaching inside the United States and overturning the settled expectations of people who have already been here.”

Michael Valverde, who served as a senior USCIS official for over two decades, noted that while the agency has historically dealt with documents from countries with less robust security practices, perceiving difficult-to-corroborate documents as a negative factor represents a significant departure from established practice. He questioned whether applicants would genuinely be able to overcome this negative presumption or if this effectively creates a “de facto ban” for people from the listed countries.

Sarah Pierce, a former policy analyst at USCIS during both Biden and Trump administrations and current director of social policy at the center-left think tank Third Way, predicted that this policy would inevitably increase denial rates and “endanger the idea of a fair and impartial review of those immigration cases.” She acknowledged the government’s legitimate interest in security vetting but condemned the predetermined negative assessment based solely on country of origin.

Constitutional and Democratic Implications

This policy represents one of the most concerning developments in recent immigration policy for several fundamental reasons that strike at the heart of American constitutional principles and democratic values.

The Equal Protection Principle Under Threat

The Fourteenth Amendment’s Equal Protection Clause represents one of the most sacred principles in American jurisprudence—the idea that the government must treat similarly situated individuals equally regardless of immutable characteristics. While immigration law operates under different constitutional standards than domestic law, this policy moves dangerously close to creating a nationality-based hierarchy that fundamentally contradicts American values of fairness and equal treatment.

What makes this policy particularly alarming is that it applies to individuals already legally present in the United States who have undergone proper vetting procedures. As Doug Rand emphasized, these are people with “settled expectations” who have followed the rules and established lives in America. To suddenly subject them to additional hurdles based solely on their country of origin represents a profound breach of trust and fundamental fairness.

Due Process and Institutional Integrity

The administrative state functions on the principle that decisions will be made based on individual merit and circumstances rather than predetermined categories. This policy threatens to undermine that foundational concept by introducing what Sarah Pierce accurately describes as “predetermining that because someone is from a certain country” their application should be viewed negatively.

This approach corrupts the discretionary analysis process by loading the scales against applicants before their individual circumstances are even considered. Immigration officers, who should be making case-by-case determinations based on evidence, would instead be directed to apply a negative presumption based on nationality. This not only jeopardizes individual rights but also compromises the professional integrity of the immigration system itself.

The Slippery Slope of Nationality-Based Discrimination

History teaches us that once governments establish categories of discrimination, those categories tend to expand rather than contract. The administration’s justification—that certain countries lack adequate document-issuing authorities—creates a concerning precedent that could easily be expanded to include additional countries or applied to other immigration benefits.

Furthermore, as Michael Valverde noted, it remains unclear whether applicants can genuinely overcome this negative presumption. If the policy effectively functions as a de facto ban, it represents an end-run around established legal processes and congressional authority over immigration policy.

Legal Vulnerabilities and Constitutional Challenges

As several experts noted, this policy appears particularly vulnerable to legal challenge because it applies to individuals already inside the United States. While the Supreme Court has upheld the president’s broad authority to restrict entry of foreign nationals, applying restrictions to those already legally present represents a significant expansion of executive power that may not withstand judicial scrutiny.

The policy also raises serious questions under the Administrative Procedure Act, which requires agencies to engage in reasoned decision-making rather than arbitrary or capricious actions. Singling out individuals based on nationality without demonstrating individualized security concerns could easily be characterized as arbitrary, particularly when applied to people who have already cleared security vetting.

The Broader Pattern of Immigration Restriction

This policy must be understood within the broader context of the Trump administration’s systematic efforts to restrict both legal and illegal immigration. From reducing refugee admissions to implementing the “public charge” rule to limiting various visa categories, the administration has consistently pursued policies that reduce immigration levels across multiple categories.

What distinguishes this particular policy is its overt nationality-based discrimination and its application to individuals already within the United States. While previous policies have raised concerns about their impact on particular groups, this approach explicitly uses nationality as a determining factor in immigration decisions.

Conclusion: Defending American Values

As a nation built by immigrants and founded on principles of liberty and justice for all, the United States has historically stood as a beacon of hope for those seeking freedom and opportunity. This policy represents a dangerous departure from that tradition and threatens to undermine the very values that make America exceptional.

The administration’s legitimate security concerns must be balanced against the fundamental American commitment to fairness, due process, and equal treatment. There are ways to enhance security vetting without resorting to nationality-based discrimination that contradicts our nation’s deepest values.

This policy should concern all Americans who believe in the rule of law, constitutional principles, and the idea that our nation’s strength derives from our commitment to liberty and justice rather than from exclusion and discrimination. As we move forward, it is essential that policymakers, courts, and the American public carefully scrutinize this approach and ensure that our immigration policies reflect our nation’s best values rather than its worst impulses.

The preservation of our democratic institutions and constitutional principles requires vigilance against policies that would erode fundamental rights and establish dangerous precedents. This policy represents precisely such a threat, and its implementation would mark a significant step away from America’s historical commitment to fairness and opportunity for all who seek to contribute to our nation’s future.