The shock over the results of Tuesday’s election of Donald Trump has not yet worn off. After two days of triage in hearing from scared clients and friends, we are now forced to confront what will lie ahead for immigration policy in a new administration. Before we go ahead though, it is important to point out a couple of things. First, our take here is speculative- Donald Trump has never voted for anything as a legislator or taken action as a government official. All we have are his words and the people he has chosen to advise him on immigration. Based upon those factors, it appears that it will be a very difficult four years for immigrants, their families, and their employers in the United States. Second, we take Donald Trump at his word. We believe that he means what he said. One error that has been made over and over again in his path to the Presidency is the belief that there is some universal principle of politics or human decency that will somehow restrain Trump. That has been repeatedly proven wrong.
Here is our first take on what the new President is likely to do.
- Repeal DACA. 750,000 young people have some measure of security against removal under DACA. They have employment authorization. When Trump campaigned against “Obama’s illegal executive orders,” he meant DACA. As DACA was created without Congress, it can be eliminated without Congress. We expect that he will eliminate DACA in the first week of his administration. It is not clear whether he would take a step to affirmatively revoke employment authorization for the hundreds of thousands of young people protected by DACA or whether he would simply not renew them when they expire. At this point, we think that anyone who needs to renew DACA or has yet to apply for DACA should still file. The window is short however. It is likely that by December, we would no longer recommend filing. People with DACA should consult with their attorneys and map out a strategy to protect themselves for the coming years. One thing that may be especially useful is for current DACA holders to obtain advanced paroles so that they can have a lawful entry which may help with residence in the future. Obviously, any travel on an advance parole granted under DACA must be completed by January 20, 2017.
- ICE Enforcement. ICE is a rogue agency staffed with rogue agents. Its union endorsed Trump and its bureaucrats have complained that Obama has stifled their ability to enforce the laws. Which is an odd claim when Obama has broken records for deportations. Regardless, ICE has stated that they feel shackled by several political directives. Specifically, ICE recoils at the “priorities” memos, a series of directives to ICE to set the standards as to who the agency seeks to detain and deport. Very roughly, the memos have instructed ICE to focus on individuals with removal orders, individuals convicted of crimes, and recent arrivals to the United States. Under these guidelines, ICE has not sought to enforce removal against those who may be here unlawfully but have been here for a long time and stayed out of trouble. Tens of thousands of deportation cases have been “administratively closed,” which is a pause in the removal process, because the individual was not a priority to ICE. For the administratively closed cases, it is an easy step for ICE to put those cases back on the docket, requiring immigrants to apply for relief for removal, if it is available, under circumstances much less favorable than they have been for years. As for those that have not been placed into removal proceedings, we see increased enforcement activity by ICE in arresting and detaining people who were largely left alone by ICE.
- We think that raids will return. By raids, we mean, ICE agents descending upon businesses, homes, soccer fields, and other places immigrants gather to arrest suspected undocumented immigrants. This is not immediate. It takes time to set a strategy and to plan the raids. We expect an increase in “interior enforcement,” which is what ICE calls this process. The absence of a robust interior enforcement effort by the Obama administration is one key gripe of those who will now take over the reins of ICE.
- Temporary Protected Status has provided some sanctuary for immigrants where circumstances in their home country have made return particularly dangerous or inappropriate. TPS designations are made by the administration and there are currently thirteen countries with TPS designation. Some of these TPS designations have been in place since 2001 and their extensions have been more a function of grace than necessity. It is very likely that a new administration would decline to continue TPS for many of these countries. 350,000 people could lose their protection and their employment authorization with the stroke of a pen. (We are up to 1 million, for those counting.)
- Increased scrutiny over applications by Muslims and people from predominantly Muslim countries. All applications for everything already undergo some type of fingerprint and background checks. We know from past experience that there are more detailed and onerous background checks that can be conducted and that take more time. We expect that every application will be delayed by the imposition of more rigorous background checks. This will be especially true of applications by people from Muslim countries and we believe it will apply to everything from tourist visas to green card applications to citizenship.
This is part 1. We will follow up soon on what the new administration may do with the support of Congress. Benach Collopy will be holding reduced fee consultations to help people identify the tools that they possess to protect themselves.
We promise that we will stand with you, defend you, and support you during this challenging time.