The role of immigration lawyers has not been so important since the election of Donald Trump as the next president. Notwithstanding his conciliatory speech after his upset win, Trump will have to deliver on some of his campaign promises that got him votes, such as border security, extreme vetting, and canceling Obama’s executive actions, especially the deferred action programs.
We are already getting a glimpse of the people who are being selected as part of the immigration transition team. Kris Kobach1 has joined the team. He was the architect of state enforcement laws, including Arizona’s SB 1070, which includes the notorious “show me your papers” provision. SB 1070 authorizes local law enforcement to ask people for proof of their immigration status when there is “reasonable suspicion” that they might not be in the country legally. He also coined the idea of “self-deportation” through attrition, which assumes that undocumented immigrants will leave on their own if the laws are applied harshly against them. Another person who has joined the transition team is Danielle Cutrona, who is Senator Jeff Sessions’ counsel on the Judiciary Committee. Senator Sessions is opposed to both legal and illegal immigration.
Trump’s immigration policies will be largely shaped by the people he selects for this important task. It may not be possible for Trump to implement his entire vision, as he would also need the cooperation of both houses of Congress. For example, Congress would have to agree to provide funding for Trump’s wall. Trump is already hedging on the wall, although Kobach stated that there is “no question” that it would be built.
The low hanging fruit is to cancel the Deferred Action for Childhood Arrivals (DACA). There are hundreds of thousands of young people whose deportations have been deferred under DACA and have done extremely well in their careers. It would be unfortunate if DACA was rescinded, which is easy to do since the policy was based on a memo of the Obama administration. Still, it will look really bad on the Trump administration and the Republican Party if this happens, since jeopardizing the lives and careers of DACA recipients will generate much sympathy. Also, DACA recipients are active and know how to mobilize to protect themselves. Indeed, it is because of their effective activism that they were able to convince the Obama administration to implement DACA in the first place, and this could potentially also convince the Trump administration to keep the program intact.
Needless to say, DACA recipients should consider alternatives as soon as possible. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a U.S. citizen spouse or through some other green card sponsorship basis. Those who cannot obtain permanent residence in the United States may have to travel outside for their immigrant visas, but they will have to carefully consider avoiding the three- and 10-year bars to reentry. These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017, when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options. Even employers who hire DACA recipients will be adversely impacted, as the law does not allow them to continue to hire a worker who is not authorized to work in the United States. Attorneys will have to carefully counsel and guide employers in this regard.
“[He] has already indicated that two to three million undocumented immigrants with criminal records will either be deported or incarcerated as soon as he takes office."
Immigration enforcement will be harsh. Trump has already indicated that two to three million undocumented immigrants with criminal records will either be deported or incarcerated as soon as he takes office. It is unclear what he means, as there are many whose only criminal act was to cross the border without inspection. Under prosecutorial discretion guidelines already in place, many undocumented immigrants with minor criminal convictions can avoid deportation. Every deportation can be contested in immigration court, and an adverse decision can be appealed. Therefore, unless Congress changes the law, immigrants caught up in Trump’s proposed enforcement sweep can potentially challenge both their deportations and their detentions. There is also talk of creating a Muslim registry and banning the immigration of people from certain countries or regions.
In the age of Trump, immigration lawyers will need to be strategic when advising clients to apply for citizenship and travel out of the U.S. They will need to use their legal acumen and every skill to protect their clients and their clients’ businesses. It is not clear how his immigration vision will unfold when he becomes president. For example, it is not clear whether Trump will be opposed to legal immigration or not, and in any event, changes to the legal immigration system would have to be effected through Congress. In his campaign, Trump pledged to “reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.” Attorneys will have to closely follow developments to understand what this means and to advise their clients accordingly.