With one Trump administration already under our belt, our nation should already be familiar with the way this returning President does immigration law. U.S. immigration law is indeed one of his favorite talking and policy points and its main appeal for him has less to do with substance, and more about advancing potent political messaging. The flaws and blunders of our nation’s immigration system were among the main themes of his first successful presidential campaign, and he is once again putting the topic to use in the scariest, loudest, and most muscular way as he returns to office.
Of the dozens of immigration stories generated by the torrent of Executive Orders and other policy announcements released last week, these are ones at the forefront for foreign nationals already residing in the U.S. (Not covered here are the many prohibitive, possibly illegal, restrictions the new administration has put into place limiting the ability of foreign nationals escaping persecution or humanitarian crises to be paroled into the U.S. or otherwise seek asylum at our border). By next week, I expect the Trump administration to generate a whole new set of sensational immigration news stories that will take front and center.
Birthright Citizenship – Within the first day of his second presidency Trump issued a half dozen immigration related Executive Orders, including one that reverses well established constitutional and statutory law that all individuals born in the U.S. (except for children of diplomats) are automatically U.S. citizens at birth. In his Executive Order, “Protecting the Meaning and Value of American Citizenship” children born in the U.S. will only be considered U.S. citizens if their parents meet certain immigration status eligibility requirements, i.e. children of noncitizens, including undocumented individuals, will not be considered U.S. citizens at birth. Alas, within a day of its issuance, this Executive Order was challenged in federal court and struck down, with a federal judge declaring the measure “blatantly unconstitutional” . We can expect the Trump administration to take the matter up to the Supreme Court, but the principle of automatic citizenship for those born in the U.S. is not going anywhere anytime soon.
Deportation Round Up – There has never been a time in my decades as a practicing immigration lawyer where the enforcement of our immigration laws has been so controversial. Every presidential administration in power during my years as an immigration lawyer – including Bush I, Clinton, Bush II, Obama, Trump and Biden – has arrested, detained, raided and otherwise took measures to institute removal proceedings against foreign nationals present in the U.S. in violation of law. This is nothing new, and neither are the laws establishing legal bases for deportation (see Immigration and Nationality Act, Section 237).
What is new is the Trump style of putting such measures into action, employing fanfare, fear and a bullhorn in making sure all 12 million undocumented individuals residing in the U.S. are in immigration enforcement’s cross hairs, including at schools and houses of worship. Realistically though, as has been the case during the past 30+ years, its likely that the targets for deportation will continue to be foreign nationals who have already been ordered deported by an immigration judge or those with significant criminal convictions. Notwithstanding Trump’s harsh rhetoric, my sense is that, with some exceptions, the vast majority of otherwise law abiding undocumented individuals will likely continue to be left alone and to live in the shadows, filling jobs U.S. workers are unwilling to perform. Also, a reminder, foreign nationals placed in removal proceedings have rights and a variety of possible defenses to deportation.
Laken Riley Act – Unlike the above referenced Executive Orders, the Laken Riley Act is a pending federal statute (passed by Congress) and awaiting the President’s signature. Among the law’s many provisions is one that directs the detention of undocumented foreign nationals merely accused, but not yet convicted, of certain crimes, such as theft, burglary, larceny, or shoplifting as mandatory.
Expedited removal – The Trump Administration has announced an expanded implementation of an expedited removal process, where without a hearing, individuals they encounter who have been in the U.S. less than 2 years will be deported. Undocumented individuals who can demonstrate they have been in the U.S. for more than 2 years, or who have a fear of being persecuted in their home country, are eligible for a hearing to defend against deportation. Undocumented individuals are advised to have in their possession documentation confirming the number of years they have been in the U.S., including proof of their relationship to immediate family members who are U.S. citizens or lawful permanent residents (green card).
Legal immigration hurdles: Although the Trump Administration has always talked about the importance of legal immigration, we can expect a return to maximum scrutiny adjudication standards put into place during the first Trump Administration. Of course there is nothing wrong with tight quality assurance and applying careful scrutiny when it comes to visa, Green Card and U.S. naturalization decision-making. But, when that scrutiny becomes weaponized by way of “extreme vetting” policies and a means to find any and all ways to deny applications, applicants will inevitably face unjust delays and results. In this regard as well as in many other contexts, the Trump Administration is prepared to be the subject of many lawsuits challenging newly implemented policies and procedures.
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PUBLISHED January 27, 2025 – “IMMIGRATION LAW FORUM” Copyright © 2025, By Law Offices of Richard Hanus, Chicago, Illinois