© Farhad Sethna, Attorney, 2016*
So now, let’s get used to the reality that we have a Republican President-elect (President after January 20, 2017), a Republican Congress, and the odds that a republican president will appoint at least two, if not more Justices to the Supreme Court. That gives Republicans – tacitly, at least – direct control of ALL three branches of government: Congress, the Executive Branch, and the Judiciary.
Immigrants (and indeed all people in the USA) would be foolish to expect Republicans to NOT take full advantage of their power. After all, “to the victor come the spoils”. [By immigrants I mean those permitted to live and work permanently in the U.S.; in contrast, non-immigrants can be of two kinds: legally admitted and here legally; or illegal – (a) those may be admitted legally and then overstayed their visas or (b) those who entered illegally and remain in the USA illegally]
As an immigration attorney and immigration law professor, what are some of the key areas that immigrants to the USA need to consider?
Using President-Elect Trump’s own statements, on his own transition website [https://www.greatagain.gov/policy/immigration.html] as a guide, here are my predictions on both legal and undocumented immigration:
Legal immigrants: Congress may change visa quotas (unlikely now, but possible in a Trump Comprehensive immigration plan)
Highly skilled non-immigrants: Trump may not increase work-authorized non-immigrant visas (example H-1b’s) for now, in keeping with his “Americans first” campaign trail rhetoric. However, over time, with business pushing for immigration reform, these limits may be relaxed, again, with a business-friendly Congress.
Family based immigration: Look for long-term limits on the current family-based immigration categories – especially given Trump’s professed “security” concerns. By playing on the fears of Americans about who is immigrating to the USA, Trump now has to “make America safe again.” Look for some restrictions, tightening, and additional background check delays in processing immigrant visa applications, especially from Moslem-majority nations.
Asylum seekers: I see a general tightening up in the (already rigorous) asylum policy, especially as it pertains to undocumented women and children coming across the southern border. I also see stricter regulations (whenever issued) curtailing the creation of “particular social groups” qualifying for asylum benefits.
Undocumented aliens: I see ICE making full use of every congressional authority it has, and then some more. With Republican appointees at DHS, USCIS and ICE, I do not think that any of the Obama administration’s “memoranda” or “Executive actions” are going to continue. Regulations are rules that are published, approved, and printed in the US Code of Federal Regulations. Agencies are bound to follow regulations. On the other hand, “memoranda” are simply guidances on how to implement the regulations, or in the absence of regulations, how to deal with a particular issue. Therefore, memoranda can be revoked or modified at any time, while regulations cannot. Specifics below….
DACA: I see DACA (Deferred Action for Childhood Arrivals) – being terminated under a Trump presidency. Trump has already pronounced immigration as one of his top three priorities, included with a repeal of “Obamacare” and “big-league jobs”. Trump named two strong anti-immigrant advisers to his immigration transition team: Kris Kobach, who was one of the authors of Arizona’s SB-1070 a few years ago, and Senator Jeff Sessions. Since President Obama’s executive order in 2012 created the DACA program, it can just as easily be undone by President Trump with – literally – a stroke of a pen. Trump does not need congressional authority to terminate the DACA program. There would be court challenges, of course, from DACA receipents who are relying on DACA protection to go to college, work, and support themselves and their families.
ICE removal priorities: I see the ICE Removal Priorities memo being followed “somewhat” – Trump has promised to remove criminal aliens, so that will be a priority. See, for example the Jeh Johnson memorandum “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” issued on November 20, 2014. However, Trump has also indicated some flexibility on aliens with families, so that may be a limiting factor. As with all policies, though, the devil is in the enforcement; absent specific instructions, line level ICE agents will be able to use their own discretion to determine whether to enforce or not. The Obama administration’s failure to publish regulations in favor of “memoranda” will soon become evident.
Use of private prisons by DHS: I see this policy continuing, because of the Trump-business partnership. CCA – the leading operator of private prisons, would stand to gain enormously under Trump’s plan to remove illegal aliens. Stocks in CCA and GEO – both companies which run private prisons – rose overnight, after the Trump victory. [ see http://www.huffingtonpost.com/entry/private-prison-stocks-trump_us_582336c5e4b0e80b02ce3287] Congress has already approved funding authorizing ICE to detain upto 34,000 aliens PER NIGHT! Imagine how much of your federal tax dollars flows in to the pockets of the private prison operators! Misery is big money in the USA, folks!
What can and should an alien do?
My advice is: if you are entitled to any kind of relief, the time to apply for it is NOW, before a Trump administration takes effect. If you want to apply for visas for family members- especially for brothers or sisters of US Citizens or sons and daughters of Permanent residents, do it now. If you are seeking Permanent residency through employment, file your petitions as soon as possible, if your priority date is current.
If you have an asylum claim, prepare and file your application NOW.
Same if you qualified for DACA and have not yet filed or are eligible for an extension of your current DACA status – do it NOW!
If you have a final order of removal, file your petition for Deferred Action or any other application for post-conviction relief NOW!
I am not being alarmist – I am simply providing an analysis based on the policies that Mr. Trump has made very clear throughout his campaign…it is up to you to do whatever you can to protect your immigrant status and your rights under the US constitution, our laws, and existing regulations.
*with grateful thanks for edits and suggestions to Professor Elizabeth M. Knowles, Esq., Assistant Clinical Professor of Law, The University of Akron School of Law; any errors are of course, entirely mine.
About the author: Attorney Farhad Sethna has practiced law for over 25 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.