In case you have not heard, in what can only be called one of the biggest upsets in U.S. presidential election history, Donald Trump defeated Hillary Clinton this morning and is now the President-Elect of the United States. As an immigration attorney, many of my clients and prospective clients have been worried about this day for over a year. They have asked me, what happens to immigrants if Trump is elected president? Will I be deported, will they deny my application for citizenship or for a green card? Will I be detained, will they take away my immigration status?
While I mistakenly assured my clients for months that he was not going to win, as any good attorney would, I contemplated the impacts of each candidate’s victory on my current and future clients. In addition, I thought about the other immigration player post-election, that being a lame-duck President Obama, who, depending on who won the election, might take two completely different approaches to immigration in his last months in office.
So on to what would happen with a president Hillary Clinton? The 2014 Jeh Johnson Prosecutorial Discretion Memo would likely remain intact and might have even been expanded. DACA would stay in place and Hillary assured everyone she would try to push through expanded DACA and DAPA again. There would be no wall on the Southwest Border and the acceptance of refugees from the Middle East would continue, or even grow from current numbers. She also pledged to push through comprehensive immigration reform
Now that Trump has been elected, I believe that the PD memo will be rescinded on January 20, 2017—inauguration day. That means, for example, no more administrative closure of removal cases if you don’t have certain criminal convictions and if you have been in the country since before January 1, 2014. That means that U.S. Immigration Enforcement will likely change their detainer policy again and detain more non-citizens from state and local jails. That means no more DACA. Once the current grants expire, they will not be renewed, or worse there may be a blanket rescission by the Trump administration of all current DACA grants. It likely means enforcement-only legislation going through Congress and huge funding for more Border Patrol Officers, more ICE Agents, more Immigration Judges, ICE attorneys and a Border Wall. Trump can also work with Congress to greatly reduce the number of refugees the U.S. accepts every year from all over the world, including Syria and Iraq. We also may see a Trump State Department make very strong demands on countries like Cuba and others to accept the return of their citizens with deportation orders. Yes, we could actually be facing the actual deportation of Cuban citizens with removal orders back to Cuba in the near future.
Yes, these are very different outcomes for immigrants from each potential president-elect. If Trump keeps his pro-enforcement campaign promises, we should see a multi-year ramp up of immigration funding and enforcement both inside the United States, at the borders and even in our territorial waters. This will mean more immigrants detained, more placed in removal proceedings and more removed from the United States. While immigration enforcement under President Trump may focus on deporting immigrants with criminal records, he certainly won’t be ignoring immigrants without criminal records who happen to get caught up in the immigration enforcement sweeps.
I have experience both inside the Department of Homeland Security and out, and I am confident that many career civil service employees within USCIS and other agencies may push back against a “to the mattresses” approach to immigration enforcement under President Trump. However, many of my former colleagues in CBP, Border Patrol and ICE are celebrating today and welcoming back a pro-enforcement administration and are very excited to implement whatever President Trump has planned.
Now, the wild card in all of this is a lame-duck President Obama. President Obama issued unprecedented immigration executive actions in the lead up to his 2012 re-election and the 2014 mid-term elections. He was surprisingly absent in making any waves on immigration in the lead up to this election. That may be because he wasn’t running and did not feel the need to take action or was afraid it would hurt Hillary if he did. That also could be because he was confident that Hillary would win and he did not want to take away her thunder on immigration reform should she have won office and taken back Congress for the Democrats.
But now that Trump is headed into the Oval Office in January, and both President Obama and Hillary are headed out to pasture, this could be exactly when President Obama will take multiple bold immigration moves to cement his legacy on the issue and keep immigrant voters on the side of the Democrats. What is a bit scary is that all of the President’s executive actions on immigration that were created with the stroke of his pen, can be equally undone by President Trump in just two months. That means, PD, DACA, detainer policies, etc, they are likely all gone very soon.
So what can the President do during the lame-duck session, without Congress, that cannot be instantly undone by President Trump? There are a few things he can do that will help immigrants immediately, and while they could be undone by President Trump eventually, they probably could not be undone on January 20, 2017.
President Obama could re-designate Haiti for TPS due to Hurricane Matthew. While Haitians were granted TPS in 2010 and re-designated again in 2011, many Haitians currently in the United States are not eligible for TPS and are facing removal from the United States.
President Obama could designate the Northern Triangle Countries of El Salvador, Honduras and Guatemala for TPS due to the ongoing civil strife in those nations due to the proliferation of gang violence. This would be a stretch of the TPS laws, but definitely not out of the questions.
The President could order the halt of removal and release of some or all immigrants with final orders of removal who are from El Salvador, Honduras and Guatemala due to humanitarian concerns in those countries.
The President could order the release of some or all families detained at the Southwest Border. While the Government has spent many millions building and staffing those detention centers as a deterrent to future mass migrations, it has not been effective in achieving that goal. Continuing to detain children and families at a tremendous financial cost to the taxpayers and human cost to those detained seems pointless now.
While the President could do any of these things, he may not. What is important to remember is that if you are an immigrant and you are in removal proceedings and have an opportunity to apply for prosecutorial discretion, you should do it immediately. If you have a final order of removal and want to apply for a stay of removal, do it immediately. If you are a Cuban with a final order of removal, go see an experienced immigration attorney to see if there is anything you can do to avoid deportation. If you are concerned about your future because you are not a citizen and you have a criminal record, go see an experienced immigration attorney to talk about your options and risks.
If you need an immigration attorney anywhere in the United States, but certainly if you live in Orlando or Jacksonville, please call Lasnetski Gihon Law.
If you are not a citizen and concerned about your immigration options, call us today for a consultation.
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