While the new administration has promised to take actions that will certainly hurt many of my clients, I propose that much, but not all, will continue under the already-strict status quo. Among the promises made by President-elect Trump during his campaign, here are four of the most concerning to the immigrant community:
- He promised to deport all criminal aliens;
- He promised to deport all aliens caught crossing the border illegally;
- He promised to cancel DACA (Deferred Action for Childhood Arrivals-- which gives a two-year work permit to children who entered the United States prior to age 16);
- He promised to build a wall between Mexico and the US.
In order to accomplish these goals, President-elect Trump stated he will triple the number of ICE (Immigration and Customs Enforcement) officers and make Mexico pay for the wall.
While so many of my clients are terrified of a Trump presidency and what it may mean for their processes already under way, there are many things that limit President-elect Trump’s ability to perform his promises.
First, as to deporting all criminal aliens, I just finished a hearing in the Las Vegas Immigration Court via telephonic appearance and I’m scheduled for another in Salt Lake this afternoon. The current administration is aggressively seeking to deport all criminal aliens. This isn’t new. President-elect Trump’s campaign promise would likely maintain the actions of the current administration.
Furthermore, as the fourteenth amendment to the U.S. Constitution reads, no state shall “…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” As the Supreme Court ruled in Zadvydas v. Davis, 533 U.S. 678, 693 (2001), (and its predecessors) the right of due process and equal protection extends to individuals who are not present in the United States legally.
This means that for aliens who are within the United States already (not those who have recently crossed or who are caught at the border), they must be given their day in court. Very few exceptions to this apply, such as if an alien has already been given his day in court, been deported, and returned illegally.
Therefore, if President-elect Trump plans to deport all criminal aliens, he must do so through the court systems which already have an incredible backlog. The Obama Administration has aggressively sought to deport aliens with criminal histories. As a result, the courts are packed. While the Executive Office for Immigration Review (EOIR) under the Department of Justice continues hiring new judges, I have cases scheduled for hearings as far out as 2019 in some courts.
In Immigration Court, an alien, having the right of due process, has the right to present any form of relief for which he may qualify. Common forms of relief are Cancellation of Removal, Asylum, Withholding of Removal, Protection under the Convention Against Torture, Adjustment of Status, and Voluntary Departure, to name a few. These are processes that were created by congress and cannot, therefore, be revoked by the sole authority of a president. He will not, therefore, be able to deport all criminal aliens on day one of his presidency.
Notwithstanding, pursuant to Immigration and Nationality Act (INA) 212(a)(6)(A)(i) … “An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.” This means that you don’t have to be a criminal to be deported. Under current law, if you are in the U.S. illegally, you may be deported solely because you are here illegally. Under the Obama Administration, discretion has been largely exercised to avoid deportation of those present illegally who are not criminals or recent arrivals (see blog post from 04/06/2016 “What are the Chances I Will be Deported?”). However, this is a discretionary measure and is subject to the administration in charge. Therefore, if Trump wished, and if he had the resources (which he doesn’t yet) he could commence removal proceedings against anyone in the US illegally. Notwithstanding, these proceedings would be governed by a right of due process as mentioned above.
The bad part is that the new administration may be less willing to exercise what we call “prosecutorial discretion.” This is when a case in removal proceedings is deemed not to be a priority for removal and, therefore, the case is closed. This is happening less and less now as ICE is arresting people based on their priorities. If these priorities change, it may subject many more individuals to immigration court removal proceedings and cause many closed cases to be reopened.
Second, President-elect Trump promised to deport immediately all those crossing the border illegally. However, most people crossing the border (at least the ones that contact my office) come because they are fleeing for their lives and seeking our protection. Every alien has a protected interest, whether statutory or constitutional, to apply for asylum or withholding Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). This has been upheld by many courts and established by statute. See also INA 208, 8 USC 1158, 8 CFR 1240.11(c)(1), 1240.33(a), 1240.49(c)(2).
Therefore, President-elect Trump, acting without congress, cannot overturn these statutes and court precedent. Those apprehended at the border will continue to have a right to apply for asylum and withholding just as they do now.
Unfortunately, under the current administration, detention of families and other asylum seekers in horrible ice-cold facilities has become the norm. They are often detained for weeks on end awaiting an interview to establish basic eligibility to apply for asylum. The conditions of these detention facilities are inhumane as established by the recent release (for the first time) of pictures of the facilities and their occupants (https://www.rt.com/usa/356548-border-patrol-detention-photos/).
The current administration has established these practices and they are likely to continue with the next.
Third, as to DACA, thousands upon thousands of undocumented immigrants who were brought here as children were beneficiaries of the DACA program which gave work permits to individuals who 1- arrived in the United States prior to their 16th birthday, 2- were born on or after June 16, 1981, 3- have been present continuously since June 15, 2007, 4- were here on June 15, 2012, 5- were in school or graduated, and 6- had no serious criminal history (EX- A DUI would disqualify an applicant). Individuals who fell under those requirements were given a two-year work permit and could then renew that work permit indefinitely.
Together with DACA, applicants could apply for “advanced parole” which is essentially a permission to travel abroad and return to the United States for humanitarian reasons like to visit a sick family member. After a DACA recipient is paroled into the country, they have a “legal entry” and, if they have a family member that can petition for their status, they could obtain permanent residency without having to consular process (that’s a big deal, saving immigrants years of application time and thousands of dollars).
DACA is a discretionary measure. It is not explicitly established by Congress but rather as a general exercise of discretion given to the Executive Branch by the Legislative. Therefore, should President-elect Trump decide to revoke DACA, he could do so and this relief many have relied upon would disappear.
Fourth, the wall. Walls divide. They are often synonymous with exclusion, elitism, and oppression. Throughout history we have seen devastating effects of walls raised by tyrants to suppress. Why then, would a wall at the U.S.-Mexico border be erected? Like everything, including presidential poll numbers, it’s more complicated than seen on TV.
As an immigration lawyer who practices mainly immigration removal defense, I advocate for more protection at the border. The part I love about my job is helping families stay together, but losing a case and explaining to a family that their loved one will not be able to live with them anymore is heart-wrenching. I dread those conversations more than anything else.
I enjoy what I do and I love the people for whom I work. However, there is a major problem at the border and increased security is a key part of the solution.
A person goes missing at the border, and I’m one of the first people the family calls to help locate their loved one. I call ICE, I check their online detainee locator, and often find the person in immigration custody, but only after days of their family not knowing where they are (how terrifying!).
As stated above, most of the people who come across illegally who contact my office are running from life-threatening conditions in their home country. However, in order to make it to the safety of the United States, they often pay a human smuggler called a “Coyote” upwards of $5,000, borrowed from family in the United States.
Coyotes are outlaws. They make their living charging exorbitant rates (Higher than my attorney fees) smuggling people into the country. It’s now common for family members to tell me their loved one was held for ransom when coming over, sexually assaulted, used as a drug carrier, or even at times, abandoned to die at the first sign of ICE.
These smugglers and the horrible acts they commit against those seeking protection in the United States must be stopped. Their abuses are unconscionable.
Therefore, I support stronger border protection, even if in the form of a wall. You can never stop all smuggling activity, but you can deter and remove the incentive. If it becomes much more difficult for smugglers, fewer and fewer of them will be able to abuse those who come to the United States seeking safety.
As an immigration advocate, I believe our focus should be not on fighting additional security at the border or a wall, but on fighting to protect the ability of an individual to approach our border and say “I need your help!” I pray we never lose sight of the obligations that come with being part of this great land and that we protect the ability of those seeking our protection in the United States.
Protect the border, and open legal points of entry to those in need.
Finally, this is only a basic summary of my opinions and predictions, not legal advice. Nothing is settled until it is actually signed into effect. So, it is impossible to know exactly what will happen under the upcoming administration.
If you are worried about your immigration status, please call me. I’d be happy to explain to you how current laws effect your specific situation, free of charge.