The Assault on Noncitizens

This article is part of a preview to the spring 2025 issue of Academe. The full issue will be published in May.

This article is part of a series, "Trump Is Revealing Our Higher Ed Crisis."

On January 20, 2025, the Trump administration issued two executive orders directly targeting noncitizens: “Protecting the American People Against Invasion” and “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats.” Together, these two orders emphasize that the exclusion, apprehension, detention, and deportation of noncitizens will be prioritized and that those who fail to cooperate—including noncitizens themselves as well as state and local actors—will be punished. These executive orders also appear to lay the groundwork for an even more robust “Muslim ban” than the one issued at the outset of Donald Trump’s first term in office. Of course, executive orders are just wish lists; they don’t themselves make law. Still, they matter, both for their expressive content and for the concrete instructions they provide to federal agencies. Until the courts strike down the more pernicious parts of these orders, institutions of higher education can play a limited but important role in resisting them.

The “Protecting the American People Against Invasion” executive order takes a number of steps to further criminalize noncitizens. Among other things, it lays the groundwork for invoking a little known—and not previously enforced—section of the 1952 Immigration and Nationality Act that requires noncitizens to “register” with the US government. Consistent with this order, the Department of Homeland Security (DHS) has since announced the “Alien Registration Requirement,” which requires the registration and fingerprinting of all noncitizens, requires noncitizens to carry special registration documents, and establishes criminal and civil penalties for those who fail to comply. Considering the sense of terror that pervades noncitizen communities under this administration, it seems likely that many, fearing imminent deportation, will choose not to register. The notion that the DHS will individually prosecute millions of noncitizens who fail to comply seems poorly thought out, at best.

This executive order also prioritizes the expansion of both expedited removal and immigration detention. Created in 1996, expedited removal—which allows the government to deport a noncitizen swiftly and without first seeing a judge—applies to noncitizens at ports of entry and to some noncitizens who “enter without inspection” and who have not been continuously present in the United States for at least two years. The executive order, along with subsequent guidance, expands the application of expedited removal to any noncitizen, anywhere in the United States, who entered without inspection and who, when confronted by an immigration official, cannot prove that they have been physically present in this country for the preceding two years. This change will predictably lead to higher numbers of noncitizens placed in detention and facing quick deportation, as well as more mistaken removals and inadequate protection for those fleeing harm, persecution, and torture.

The executive order also contains a number of insidious promises, touching on nearly every aspect of our complex immigration system. It gestures toward the end of Temporary Protected Status (TPS) for Venezuelans and Haitians, which has since been announced. It also encourages information sharing between law enforcement agencies, promotes increased collaboration between local police and Immigrations and Customs Enforcement (ICE), and threatens that federal funds will be withheld from sanctuary jurisdictions. Finally, it pauses the distribution of federal funds to certain nonprofit organizations that have been providing pro bono services to noncitizens and orders that those services be audited for potential “fraud” and “abuse.” Subsequent cuts to the funding provided to these organizations seem almost inevitable.

The second of these executive orders, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” is equally ominous. In large part, this order sets the stage for an updated Muslim ban. It instructs the DHS, the US attorney general, and the director of national intelligence to identify countries “for which vetting and screening information is so deficient as to warrant a partial or full suspension on the admission of nationals from those countries.” This order is designed to shore up the case for banning certain foreign nationals from entering the United States.

But this executive order isn’t limited to those who wish to enter the United States. It also aims to identify, apprehend, and deport those noncitizens already here who “bear hostile attitudes toward [US] citizens, culture, government, institutions, or founding principles,” or who “advocate for, aid, or support designated foreign terrorists and other threats to our national security.” On the campaign trail, President Trump vowed to “immediately deport” student protesters, and the Republican Party’s 2024 platform also promised to “deport pro-Hamas radicals and make our college campuses safe and patriotic again.” Indeed, the administration has already acted to revoke the immigration status of noncitizens with political views they dislike, including recent, high-profile—and legally specious—arrests of noncitizen activists Mahmoud Khalil, Leqaa Kordia, and Badar Khan Suri, among others.

Together, these executive orders have already had profound impacts on higher education and the landscape of constitutionally protected speech on college campuses. Fortunately, colleges and universities can take steps to limit those impacts, including invoking existing privacy protections, refusing to affirmatively cooperate with ICE, providing free, in-house counsel to affected students, and actively protecting students who exercise their First Amendment rights.

To begin with, institutions can rely on existing privacy protections. The Family Educational Rights and Privacy Act (FERPA) protects personally identifiable information contained in a student’s education records, including disciplinary records. If ICE or another law enforcement agency requests any records or information about a student from a faculty or staff member, such information should not be shared in the absence of a lawfully issued subpoena signed by a judge. FERPA also requires the institution, in most circumstances, to notify a student ahead of any disclosure. Colleges and universities would do well to remind faculty and staff of these protections, and to apply them with vigor.

Campus police can also refuse to actively cooperate with ICE. The 287(g) program allows local law enforcement to enter into memoranda of understanding with ICE, and campus police may be under increasing pressure to do so. Colleges and universities should resist this pressure; such cooperation is entirely optional and, despite threats from the Trump administration, local non-cooperation with immigration enforcement is not a prosecutable offense.

Recent estimates are that at least one-third of college students are noncitizens. Higher education institutions should immediately hire in-house immigration counsel to advise noncitizen students both of their rights and of potential pathways to lawful status. With nonprofit organizations facing a temporary pause in government funding, as well as potential long-term cuts, pro bono services will be even less accessible to students. Recent announcements by the DHS signal that many students will lose their TPS status, and other protected status, before the end of the spring semester. Institutions should be exploring postgraduate pathways that, for example, help undocumented students or those on student visas to transition to work visas upon graduation.

In the event of a new Muslim ban, colleges and universities must speak up for their constituents. In February 2017, forty-eight college and university presidents wrote to President Trump, strongly urging him to withdraw his first Muslim ban. Subsequently, a number of universities became plaintiffs in lawsuits challenging the ban. Today, universities seem more apt to engage in anticipatory compliance, and even outright capitulation. As the Trump administration continues to roll out increasingly xenophobic policies and directives, higher education must push back, in letters, in lawsuits, and in the streets.

Finally, colleges and universities must be intentional about protecting students who are exercising their First Amendment rights. Higher education has historically been a bastion of protest activity. Indeed, for many, being nineteen years old all but requires bearing a “hostile attitude toward the US government and our founding principles.” But the language in the second of these executive orders seems intentionally designed to target noncitizens who exercise their constitutional right to express themselves and their beliefs. College and university leaders should be mindful that noncitizen students engaging in lawful protest activities will face increasing criminal and civil penalties, including detention and possible deportation, as in the case of Khalil, Kordia, Suri, and others. Imposing disciplinary sanctions may not only run afoul of students’ First Amendment rights, but, increasingly, will place them at high risk of detention and deportation. Higher education is under no legal obligation to shill for ICE; colleges and universities owe it to their students and the integrity of their mission to stand firm in the face of government harassment and repression.

The Trump administration’s flurry of executive orders was designed to distract, terrorize, and foment chaos, in both the community and the courtroom. Institutions of higher education, ideally acting in concert with one another, are well poised to name this strategy for what it is, and to offer meaningful resistance in robust defense of their students.

Sarah Sherman-Stokes is associate director of the Immigrants’ Rights and Human Trafficking Program and a clinical associate professor at Boston University School of Law.