Published February 22, 2017
The grandiosity with which the Trump Administration has released Executive Orders in the past month is undeniable. If their effectiveness is to be judged by the amount of media coverage and public hysteria that has been generated, then these orders get an A+. President Trump is leaving a distinct impression that when it comes to immigration law enforcement, he is taking action and fulfilling the promises he made to this constituency while campaigning. The message of this week’s Executive Order is that anyone who is residing in the U.S. in violation of immigration laws is subject to being placed in removal proceedings, or in some cases expedited removal. How realistic this plan is and how it actually impacts the non-criminal undocumented worker in the U.S. remains to be seen.
The following are some of the most important questions and answers when it comes this week’s Executive Order on immigration:
1) Who has to worry?
The focus of this week’s order relates to border security and proceedings to remove individuals seeking entry into the U.S. at our border. However, also covered in this recent directive is anyone who is present in the U.S. in violation of immigration laws, especially those who are the subject of outstanding removal orders, those who have committed some form of immigration fraud or those charged with or convicted of criminal offenses. However, all of the above classes have always had to worry to some degree, since by definition, individuals violating any law in a law-based society, like ours, have to be concerned about consequences.
The extent to which all our nation’s 12 million immigration law violators have to worry that much more than in earlier years is a good question, since the effective implementation of initiatives featured in the executive order depends on many factors that are not yet in place. Those factors include new Congressional appropriations in the billions of dollars to allow for the hiring of 10,000 new immigration enforcement officers and the opening of expanded detention facilities. For the foreign national living in the U.S. in violation of our immigration laws, but is otherwise law abiding, it is highly questionable whether in reality, they face that much more of a risk of being placed in removal proceedings under the new Executive Order.
2) What is the penalty for violating U.S. immigration laws?
With regard to immigration laws- which are civil and not criminal in most cases, the consequence is generally a civil penalty, and in the form of being subject to removal/deportation proceedings. Criminal prosecution, including criminal penalties such as prison sentences, are typically of no relevance to a discussion regarding immigration violations.
3) Do immigration law violators have rights?
Yes! With a few exceptions, the vast majority of immigration law violators have a right to a removal hearing and due process of law, including the right to retain counsel at no expense to the U.S. government. If apprehended, the vast majority of immigration law violators can seek release on a bond, and while awaiting removal proceedings. Those residing in the U.S. more than 10 years, and with U.S. citizen or permanent resident parents, spouses or children, may have a chance to seek “cancellation of removal”, and ultimately be approved for a green card. To succeed, an applicant will also need to document their “good moral character” and that their forced removal will cause their family to experience extreme and unusual hardship. Importantly, even those with minor criminal offenses may still qualify for such relief.
Individuals who are the spouses or parents of adult U.S. citizens, or are the under 21 year-old children of U.S. citizens may also qualify for relief, no matter how many years they resided here.
Alternatively, apprehended immigration law violators can seek relief based on their fear of returning to their home country due to persecution they face because of their race, religion, political affiliations or social group.
Lastly, apprehended violators who do not qualify for any of the above, can request a reasonable period of time to voluntarily depart the U.S., giving them the opportunity to dispose or transfer property, or otherwise put their affairs in order.
4) Do approved DACA applicants have to worry about this week’s Executive Order?
No, not at this time. Approved DACA applicants were specifically excluded from the reach of this week’s Executive Order.
5) Which immigration law violators will be subject to “expedited removal”, where a right to a hearing is not necessarily guaranteed by law?
The Executive Order aims to subject various sub-classes of removal of non-citizens to “expedited removal” and where a removal proceeding can be skipped in order to effect the offender’s removal from the U.S. Most notably, undocumented individuals residing here less than 2 years, and regardless of their clean criminal record, are viewed by this administration as subject to “expedited removal”.
6) What is my message to an undocumented person residing in the U.S.?
Do not panic. If you find yourself apprehended the key is to know that in all likelihood you have a right to a hearing and to hire an attorney. Make sure to carry with you proof that you have resided in the U.S. for more than the past 2 years, such as tax return transcripts, receipts, medical records, or the like. Make sure a family member or friend is able to contact a reputable immigration lawyer on your behalf to assist in protecting your rights and provide you a chance to remain in the U.S. by way of one of the above avenues of relief to removal.
7) Is there still a possibility a path to legalization will eventually be available for the undocumented individual in the U.S.?
Yes. Eventually, after the Trump administration has had a chance to send a message to its constituency that it is serious when it comes to enforcing our immigration laws – especially against the undocumented with more serious criminal convictions and outstanding removal orders, it is entirely possible that a legalization plan will eventually be on his agenda. If and when that will happen, no one knows.
PUBLISHED February 22, 2017– “IMMIGRATION LAW FORUM” Copyright © 2017, By Law Offices of Richard Hanus, Chicago, Illinois