Published November 9, 2016
Panic is rarely a useful response to a stressful situation. In the U.S. immigration arena in the aftermath of Donald Trump’s election to the U.S. presidency, panic is neither useful nor necessary. Yes, he spoke about a wall. Yes, he spoke about rounding up all undocumented immigrants. But did he mean it? If he said it, why wouldn’t he mean it? If he did mean it, what laws and political realities should the undocumented be aware of?
Will our nation’s undocumented be rounded up for deportation?
Very, very, very unlikely. While Trump made such an initiative a hallmark of his primary campaign, he eventually stepped back the aggressive tone after getting his party’s nomination. His position could be best described as a wait and see in terms of what measures his administration would take against the undocumented population with little or no criminal record. With regard to the undocumented with serious criminal records, one could expect an aggressive approach, although the Obama administration’s current immigration enforcement program is considered aggressive already and even by Trump standards. Furthermore, rounding up 12 million undocumented would require no less than a 3000% increase in our nation’s immigration enforcement infrastructure, which includes the hiring of large numbers of immigration agents, immigration judges and immigration prosecutors. The cost of such an expanded infrastructure would be in the hundreds of millions, if not billions.
Can immigration agents just pick up the undocumented and send them on a plane home?
NO. Practically all undocumented non-citizens residing in the U.S. are entitled to, per the U.S. constitution and guarantees of Due Process, a removal hearing before a judge. Noncitizens are entitled to hire an attorney, although at their own cost. Undocumented noncitizens have the right to assert a variety of defenses to removal or deportation. Most notably, the undocumented a) who have lived here more than 10 years, b) who have clean or near-clean criminal records, and c) who have a U.S. citizen or permanent resident spouse, parent and/or child who will experience extreme hardship in the event of the undocumented’s deportation—are eligible to be considered for “cancellation of removal”. If granted cancellation of removal relief, the undocumented individual, ironically, gets awarded permanent resident status (green card) by the Immigration Judge. Also, individuals fearing persecution, political or otherwise, back in their home countries, are eligible to be considered for asylum relief. Beyond those, in many cases there are other creative options to fend off removal, including for individuals who get married to a U.S. citizen (bona fide marriage) while fighting deportation. All the while, again, the non-citizen has the right to be represented by legal counsel to present any and all defenses.
Why did Trump talk about rounding up all the undocumented if he did not mean it?
Because it was a message he figured (rightly) that a large constituency in the U.S. wanted to hear, and by saying it, he appeared like he was going to do something about the problem. For certain the problem exists, and successive administrations—both Republican and Democrat, have allowed our nation’s undocumented population to swell beyond 12 million. The alternative solution, a path to legalization to absorb this population, has regularly been pushed by most of the establishment Democrat and Republican politicians in the past. But most things from the past or the establishment were the opposite of what Trump wanted to present to his targeted demographic – the demographic that showed up in droves to carry him to the presidency.
Speaking of a path to legalization, or amnesty, for the undocumented—is that still a possibility?
Crazy as it sounds, the chances a path to legalization, amnesty or whatever name the politicians want to use, will get passed by Congress and signed into law may even be better under Trump. In the likely event Trump concludes that the economics and logistics of a mass round up make no sense at all, one might expect to hear him start selling a type of legalization plan he so loudly condemned while on the campaign trail.
In the end, individuals inclined toward panic, or who merely have questions on any of these issues, are advised to seek reputable, competent counsel and guidance.
PUBLISHED November 9, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois