A lot of our attention in recent weeks has been focused on the Executive Order signed on January 27, 2017, regarding the ban on persons from certain countries.
For reasons not entirely clear, but probably as a result of these Executive Orders from January 25, it appears that U.S. immigration officials are increasing their activities in search of persons unlawfully in the United States.
It is also quite possible that U.S. immigration officials might be increasing efforts to locate permanent residents who have criminal convictions that might make them subject to deportation.
Before discussing the two Executive Orders signed on January 25, 2017, I want to provide the following suggestions for people to do immediately:
Permanent residents. Carry your green card with you at all times. Keep a photocopy of your green card in a safe place at home.
Lawfully present nonimmigrants (students, visitors, employees, and others whose authorization to be in the US has not expired). Carry with you at all times your EAD, I-94 card, passport with entry stamp, or other proof of lawful presence. Carry the original with you and keep a photocopy in a safe place at home.
Persons unlawfully present in the United States for more than 2 years. Keep with you at all times evidence that you have been present for at least 2 years. Such evidence might include utility bills with your name going back 2 years, pay stubs with your name going back 2 years, or other documentation going back at least 2 years. Keep a photocopy at home. Have a plan in place with your loved ones for what happens if you don’t come home one day. Do not presume you will be allowed to make a phone call.
Persons unlawfully present in the United States for less than 2 years. Have a plan in place with your loved ones for what happens if you don’t come home one day, e.g. who picks up the kids from daycare, etc. Do not presume you will be allowed to make a phone call.
On January 25, 2017, an Executive Order titled “Enhancing Public Safety in the Interior of the United States” was signed. This Executive Order (EO), among other things, makes it a priority of U.S. immigration officials to seek the removal of non-citizens who are deportable under existing immigration laws, for such things as certain criminal convictions, espionage, terrorism, misrepresentations to U.S. immigration officials.
More importantly, the EO also makes a priority for removal any persons unlawfully in the United States who:
- have been convicted of any criminal offense;
- have been charged with any criminal offense, where such charge has not been resolved;
- have committed acts that constitute a chargeable criminal offense;
- have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
- have abused any program related to receipt of public benefits;
- are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
- in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Considering all of these different priorities for enforcement, it appears that, in effect, all persons unlawfully present in the United States could be included as a priority for removal.
Also on January 25, 2017, another EO, titled “Border Security and Immigration Enforcement Improvements,” was signed. This EO discusses the construction of “the Wall” along the U.S.-Mexican border. But it also does much more. The EO:
- orders the construction of new detention facilities near the U.S.-Mexican border
- directs asylum officers and immigration judges to handle cases at those detention facilities
- directs the hire of 5,000 new Border Patrol agents
- empowers state and local law enforcement officials to “perform the functions of an immigration officer … to the extent permitted by law.”
- directs DHS to take action to apply “expedited removal” to the maximum extent permitted by statute: to any individual who has not been “admitted or paroled” who cannot prove she or he has been continuously present in the United States for 2 years.
As a result of this final point, I suggest that persons present in the United States without permission who have been in the United States for at least 2 years, carry with them documents to prove their presence in the United States for at least 2 years, as described above.
Thank you for your time.
I want to give you some thoughts about the future, after the results of the presidential election.
I do not know whether we will get any significant changes in immigration laws during the next 4 years. It is possible, but it is also possible that there might not be changes. It will depend on the priorities of the Trump Administration and on the actions of Congress.
For persons who are U.S. citizens or permanent residents, the election of Donald Trump should not result in any particularly new or different problems for you with respect to U.S. immigration laws.
For everyone else, if there are significant changes in immigration laws, the laws might actually help, or they might make things worse. At this time, we just don’t know. If there are changes in the laws, we also don’t know how quickly or slowly such changes might occur. Things in Washington often move more slowly than we might think at first.
It is possible that the way cases are handled by the various immigration agencies will become stricter, but that also will not happen overnight. There are thousands of immigration officials employed at USCIS, ICE, and CBP (Customs and Border Protection), and so if there are changes in procedures, they might happen slowly, if at all. At this time, we just don’t know what changes in procedures might occur.
Probably most of the thousands of current employees in the federal government will remain working at their jobs. Most will probably continue to handle cases the same way that they have been handling them up to now. It is possible that the Trump Administration could call for changes in the way that cases are handled, but again, many of those changes (if any) take time to be implemented.
Some programs, such as the I-601A Provisional Waiver Program, remain in place. A program such as I-601A could only be changed through an official process, which could take 6 months or longer.
Other programs, such as DACA, could be eliminated more quickly. The future of DACA as of January 20, 2016 is uncertain.
I think that it is possible that CBP (the officials at the airports and the borders) might become tougher and stricter in their encounters with persons traveling into the United States. I always advise that you communicate with me before you travel. Now, with the election results, I want you to know that you might possibly face a more difficult encounter with CBP when you return to the United States. We don’t know how CBP might change the way they do their job. At this time, the best we can say is that they might become more strict.
For persons who have cases in Immigration Court, and whose cases have been administratively closed, the future is uncertain. There exists the possibility that the new administration could order ICE to continue with your case in Immigration Court. At this time, we do not know what the new administration might, or might not, do with cases that have been administratively closed. If your case returns to the Immigration Court, or to the Board of Immigration Appeals (BIA), then we will have the right to continue to argue on your behalf to try to obtain any immigration benefits in Immigration Court or the BIA to which you may be entitled.
Adjudicators will not instantly start deciding cases differently from how they are doing it now. A case that would be approved today will be approved in the first few months of Trump’s presidency. There could be rapid change in specific types of cases due to a policy change – DACA is the most likely target of such a policy change – but the majority of cases will be decided the same as before.
New administrations can change how things are done, but there are laws preventing that from happening too quickly.
For cases that we are currently preparing, I expect we will be able to finish before substantial, sweeping change takes place. I cannot promise that a sudden policy change won’t affect your case, but I believe it is unlikely. The best thing to do is carry on and try to finish as quickly as possible. You can help me in that regard by providing me with requested information and documentation as quickly as possible when I request it. The sooner we finish your case, the better.
You will have questions that I will be unable to answer because I do not know the future. My promise to you is that I will do the best possible job on your case. Do not despair. Keep moving forward.
If after reading this you still have questions, please send them and I will respond as soon as I can.
The Center for American Progress recently published a thoughtful opinion piece criticizing the focus of some legislators on obtaining an impossibly secure border before considering comprehensive immigration reform.
The authors of this piece argue that, although border security is important, legislators should pursue that goal along with, and not instead of, comprehensive immigration reform.