Dear Immigrant: This Is What You Can Expect in Trump’s America
On the day after the election there was a lot of shock and dismay in the immigrant community. Our firm received many calls from both clients and prospective clients who were scared and had many doubts about what the future would hold in Trump’s America. We are taking this opportunity to let the immigrant and legal community know about what may or may not happen during a Trump administration. Please take everything with a grain of salt; we are speculating quite a bit as no one knows what is bound to happen, perhaps not even Trump himself.
Because this blog post is fairly long we’re going to cheat a little and give you the conclusion up front: We are not too worried about what is going to happen. The United States as a country and its form of government is very large and very hard to change. This was done on purpose by the founding fathers. They did not want populist winds to swing the country too far left or right in a whim. Imagine yourself holding in your hand a small object like a pen. You can throw that pen 30 feet away easily and with little effort. Now imagine you are standing in front of a giant rock that weighs 20,000 tons. Not only you are not going to be able to throw it 30 feet away, but even if you and 100 of your strongest friends got together you may be able to sway it an inch or two but probably not move it very far. The U.S. government is like the giant rock and not like the pen. Whomever is in power can only sway the giant rock and maybe move it a little, but not much.
Things will change for sure, but nothing so drastic that the world as we know it will end. There are many things immigrants can do to prepare for eventual changes. The key is to act: do something about your situation now; do not wait and see what happens.
There are 5 different levels of legal authority and administration of such legal authority:
2. Statutes or Laws of Congress
4. Executive Orders
5. Administration employees administering the above
Ok, the last one is not legal authority, but we’re including it in the list so that we can provide our predictions on how we expect the administering of legal authority on the ground.
We will address each one in turn.
There is not much that Trump can do about the Constitution. The founding fathers made it very hard to change the Constitution. This was done on purpose. They did not want some populist flame to swing this great country too far into one direction or another. It takes 2/3 of both houses of Congress to propose a constitutional convention before it is ratified. Alternatively, 2/3 of state legislatures can propose a constitutional amendment, and it taks 3/4 of the states to ratify the amendment before it becomes part of the Constitution. There is absolutely no realistic chance a constitutional amendment will take place during a Trump administration.
Many of the rights and freedoms this country is known for and envied by the world are guaranteed in the constitution. Whether you are a U.S. citizen or have no status at all, you have certain rights the same as everyone else in the United States. For example, a police or immigration officer cannot enter your home without a warrant. You have the right to remain silent and a right to be represented by an attorney. No one, not Trump, or anyone else can take these rights away. Know your rights and exercise them.
2. Statutes or Laws of Congress
Laws are passed by Congress and signed by the president. The president himself cannot change laws that Congress has passed. Only Congress can do that. Many of the immigration provisions we use every day fall under this category. For example, a U.S. citizen will continue to be able to petition for a foreign national spouse or parent or child. An employer will continue to be able to petition for a valuable employee to obtain permanent residence. Someone who has a fear of returning to their home country will continue to be able to apply for asylum. A victim of a crime in the U.S. will continue to be able to apply for a U visa and eventually permanent residence.
While Congress can change these laws, chances are pretty low there will be any drastic change. While immigration reform may have a possibility, it is unlikely there will be a drastic rewriting of immigration laws to the detriment of most immigrants. We believe this even though Republicans control both houses of Congress. While most legislation needs a simple majority in the House of Representatives (which the Republicans have), the Senate is a whole different story. In the Senate any one senator can essentially hold a piece of legislature “hostage” through the power of filibuster. A single senator can essentially speak on the floor of the Senate for forever until the proponents of the bill give up. These days even the threat of a filibuster is enough to kill a bill; the senator does not even get up on the floor to speak like in the days of old. It takes 60 votes in the Senate to end a filibuster through what is called a “cloture.” Republicans only have 51 (maybe 52 after there is a runoff election in Louisiana). Therefore any drastic legislation that could reshape the legal landscape as we know it is likely to die in the Senate.
There may be some changes of immigration laws in the next 4 years, but because of the above it will have to be a compromise and not a one-sided rewriting of the laws.
When Congress passes a law it generally does not provide details; it only gives a general directive. It is the executive branch’s job to promulgate regulations that give the details of how the law is to be implemented. For example, in order to apply for a green card, Congress simply said if you fulfill these 4 requirements you can become a Permanent Resident. The administration then decides through regulations what form to use, how much to charge, what documentation to submit with the application, etc. The regulations have to be based on the statute, meaning that they have to carry out the intent of Congress. The administration can change regulations but it is not a fast process. The administration has to rewrite the new regulation. It then has to publish it in the Federal Register and give the public an opportunity to provide comments on the proposed regulation for 60 days. After this period the administration is supposed to take into account comments from the public in coming up with the final regulation. This process takes time, quite a bit of time, and it is quite rare for a regulation to be promulgated in a year or less. There are many laws passed in the 1996 immigration reform that still do not have regulations. That was 20 years ago.
There are some common regulations that affect many immigrants, some of which promulgated during the Obama administration. The most common one is the provisional waiver, which allows for the filing of certain waivers from inside the United States as opposed to from abroad. This change in the regulations during the Obama administration essentially cut the time many immigrants married to U.S. citizens had to wait outside from 6 months or more to a week or two.
We highly doubt the Trump administration will change this or other regulations like it. However, even if they do, it will take some time and most if not all immigrants who are in that process will either be able to complete the process under the old regulations or be able to change the course of their application before the regulations change. This is not a change that can happen overnight and surprise many people in the process.
One concerning regulation is one from the Bush II administration which provided that certain Muslim immigrants needed to register and undergo pretty stringent oversight procedures. This regulation faced much opposition as it was seen as blatant profiling of people based solely on religion or national origin and its application was stopped. This is something that the Trump administration can bring back. We highly doubt, however, that they will be able to do so without a major amount of opposition from advocates; after all the courts are still alive and not controlled by a Trump administration. The founding fathers made sure of that.
4. Executive Orders
Executive orders are much easier to issue and just as easy to take away by the same or a subsequent president. This is what can change overnight at a stroke of a pen by Trump. The most vulnerable immigration programs that were created by executive order are DACA (Deferred Action for Childhood Arrivals) and DAPA (Deferred Action for Parents of Americans). DACA has been in effect since 2012 and an estimated 700,000 young men and women who were brought here as children have benefits under it. DAPA never went into effect since it was blocked by a judge in Texas and the Supreme Court deadlocked after the death of Justice Scalia.
Trump said during his campaign that he would end these programs. While it is likely that this will happen, it is not guaranteed. Trump has already changed his stance on just about every major promise he made during his campaign: I will put Hillary in prison, no, not really; I will repeal Obamacare, no, not really; I will deport all 12 million undocumented immigrants, well, maybe only 2 million; I will build a wall, well, maybe a fence.
Even if Trump ends DACA, the question is how will it end? Will he just order DHS to stop accepting new applications while allowing those who already have this benefit to continue to use it until it expires? Or will he end it and revoke every single work permit out there under this program? If this ends, we believe it will most likely be the former rather than the latter. It is very easy to just end the program and say no more applications; just the stroke of a pen. It is quite hard to revoke 700,000 permits that have been already issued. To revoke a permit, DHS has to issue a notice of intent to revoke and give the person holding the permit 15 days to respond. Only after the person responds can the administration revoke the permit. It takes a tremendous amount of resources to revoke 700,000 permits and it would take a considerable amount of time and money to do so. While it is possible, it is not likely. Trump gains all the political points with the far right by just ending the program without having to go through the trouble of revoking all outstanding permits.
5. Administration of Laws and Regulations
While Trump has the power to appoint many top level leaders in the immigration agencies, most of the staff below the highest executive levels will likely remain the same. There are many good men and women who work for DHS. Most of those good people are not going anywhere and they will not be doing things very differently no matter who is president. However with the multitude of good men and women, there are a lot of naysayers and bad apples. While the laws and regulations as described above are not likely to change drastically, many DHS and DOJ employees who were out to “get” immigrants will just feel empowered and emboldened to do just that. We have no doubt we will see some more heavy handed application and administration of the laws and regulations; however, lawyers are here to stay and we will not just sit back and watch it happen. We will fight every single injustice and misapplication of the law at every turn. The Courts are not going anywhere whether Trump likes it or not.
Even though we expect an uptick on the harshness of the application of the laws, we do not expect a drastic change in that direction. Obama has been doing many of the things that Trump is promising to do. The Obama administration has deported more immigrants than any other president before him and already focuses removal efforts on those with criminal history. He has jailed defenseless mothers and children fleeing untold violence from Central America in order to discourage others from coming, which by the way has not been working at all; numbers have been going up. There is only so much that Trump can do beyond jailing mothers and children as young as a few months or even days old.
Whatever Trump wants to do in ratcheting up enforcement, he is limited by what he has to work with. For example, DHS has only enough resources (money and manpower) to deport about 400,000 people per year. There are an estimated 12 million undocumented immigrants in the U.S. If Trump were to go after every undocumented immigrant here, it would take 30 years to deport everyone, and that’s assuming that no new undocumented immigrants enter the country in the next 30 years. It’s just impossible for Trump or any administration for that matter to deport everyone here without status. The realities are that he will have to pick and choose who he goes after and the target has always been immigrants with criminal convictions. Well, that’s nothing different than Obama has been doing. So we don’t see much more of a change in that regard.
Regardless of what happens there are many things that immigrants can do to be prepared. First, know your rights and exercise them. If someone comes to your door, ask if they have a warrant. If they do not, tell them to go back and get one before you will allow them in. If you are arrested, do not say anything until you see a lawyer. Enforcement officials, whether police or immigration, are not your friends even if they may sound like it. Second, take action to protect your assets and children. An example of this would be documentation you can prepare in advance in the event of an arrest. Our firm is preparing powers of attorney and temporary guardianships that undocumented immigrants can use to give power to someone else to access their bank accounts or sell their property or take care of their children if they are detained or deported. These are inexpensive services that everyone should have in place, immigrant or not.
Much of what will happen remains to be seen. Odds are that many of the campaign promises are going to go unfulfilled. The constitution is still in place. The courts are not going anywhere. Lawyers are not going anywhere, if anything we are invigorated and energized by what’s ahead. We did not go to law school to just push paper, we went to law school because we wanted to protect clients' rights and make sure that tyrannical governments were shown their place. We intend to do just that.