President Trump!!?? Practical Implications to our Immigration System (Part 2)

After digesting our new reality and venting about it (see Part 1 of this blog series), let’s try to rationally analyze how President Trump may change our immigration system.

Is There Any Hope for the DAPA Program and the Expansion of the DACA Program?

No. Neither of these programs ever took effect because of federal litigation that challenged Obama’s power to create these programs. With Trump as our President, there is little doubt that he will use his executive power to overturn Obama’s executive action that created these programs in the first place.

What Will Happen to the Existing DACA Program?

This is a much more complicated question. Trump did state in several speeches and in his plan for the first 100 days of office that he would immediately overturn every one of Obama’s immigration executive action programs, which would presumably include the original DACA program as well. Whether he will actually do this is a harder question to answer, though it certainly is a possibility.

The current DACA program continues to exist and was never challenged by federal litigation. Even more importantly, there was greater support and less opposition to this program because of its beneficiaries; namely, individuals who were brought to the U.S. as children and have obtained at least a GED or high School diploma. Different polls in the past have shown bi-partisan support for DACA and even granting these individuals some long-term path to citizenship. However, this is an immigration program that is particularly vulnerable to Trump since it (like DAPA and DACA expansion) were created entirely by the President. With one swoop of his pen, Trump could end the DACA program as well. Historically, politicians are reluctant to take back benefits, but the rules of history do not seem to apply to Trump. I hope however, that within his heart, he would see the profound injustice in such action and leave the current DACA program intact.

If Trump Ends the Current DACA Program, am I at Risk of Deportation because the Government Has All of my Information?

Anyone without lawful status has always been at some risk of deportation; however, what Obama established was a formal pronouncement that a certain group (DACA recipients) is not an enforcement priority and is entitled to obtain work permission. If the program is taken away, the Department of Homeland Security will retain personal information of all DACA recipients. To use this information to place these individuals in deportation proceedings would be outrageous and perhaps even illegal (though I have not yet formulated the legal arguments, basic principles of justice support the idea that you cannot formally request information from an individual to help them and then turn around and use this information against them, absent a negative act by that person such as an intervening criminal conviction.) Additionally, DACA recipients are absolutely the lowest priority for deportation, and our system is still struggling to deport high priority individuals (typically people with significant criminal records). Consequently, I think the risk of using DACA information against its recipients is low.

What Will Happen to Refugees who seek to relocate to this Country?

There are two distinct groups of refugees. Those who currently reside outside the U.S. in countries such as Syria and hope to be designated as refugees in order to move to the U.S, and those that arrive in the U.S., typically at our southern border and from Central American countries, and ask the U.S. government to allow them to remain here (these people are called “asylum seekers”). The number of refugees designated as such outside our country are determined by the President with consultation by Congress. For example, in 2016, President Obama designated 85,000 and recommended from which countries these refugees will come from. This power is primarily vested with the President. Given Trump’s position on Syrian refugees and his broader stance on immigration, it can be presumed that this number will dramatically decrease in the coming years, and we may see outright bans on any refugees from certain countries such as Syria. This will be truly sad and represent a complete resignation by the U.S. as a human rights leader across the globe.

In contrast, the number of asylum seekers who arrive in the U.S. is not capped at any particular number, but instead governed by international human rights treaties that the U.S. has signed. If a person arrives on U.S. soil and meets the definition of a refugee, they cannot be turned away by law. Given how many other treaties Trump has pledged to un-do (namely trade deals), let’s hope it is unlikely that he will attack international human rights treaties as well.

Will Trump Change Enforcement Priorities and Policies?

This is the area that Trump is most likely to effect change. Remember, first and foremost, our President is in charge of implementing and enforcing our laws. This means that the President has largely unchecked power in terms of how to enforce our laws. Just like Obama used his enforcement discretion not to enforce our immigration laws against certain individuals (a foundational enforcement power deemed “prosecutorial discretion”), Trump can certainly use his enforcement power to step-up enforcement against certain groups. However, it is important to remember that President Obama certainly did not shy away from enforcing our immigration laws against a large number of people. In fact, Obama has actually deported more individuals than any prior president. Hopefully, when/if Trump realizes this, he will realize that deportation enforcement is actually not a priority, particularly when we continue to see lower numbers of undocumented immigrants entering the country each year.

Will Trump Resuscitate Immigration Detainers or the Secure Communities Program?

There is certainly a chance that Trump will return us to an even stricter enforcement environment that we have seen in the past. An environment where any undocumented individual is placed in deportation proceedings if they have contact with local or federal law enforcement, even absent any criminal record or serious immigration violations. On the bright side, we have recently seen many successful legal attacks on unconstitutional enforcement policies, such as the abolishment of immigration detainers (ICE requiring local jailers to hold individuals beyond their sentence dates in order to process them for deportation proceedings), and the abolishment of the Secure Communities Program (encouraging local police to participate in immigration enforcement in unconstitutional ways). Hopefully, Trump will be advised that trying to resuscitate these types of policies is extremely unwise given the legal challenges that will come. Sadly, Trump has shown an outright passion for litigation in his professional life, which suggest that unconstitutionality and legal challenges may not deter him at all.

Will Trump Actually Build a Wall Across Our Entire Southern Border?

First, our southern border actually already has a wall located at many busy sections of the border. So the question really is, will Trump expand this wall and even try to build a continuous one across the entire border. A continuous wall has not been built for many practical reasons including: (1) It would be incredibly expensive to build a continuous wall, particularly in mountainous regions and regions that are not accessible by road. (2) Enforcement experts, including a past Secretary of the Department of Homeland Security, have advised that there are many better ways to improve border security, such as better border monitoring technology (drones, cameras, etc…) or a greater number of patrols in certain sectors. (3) Show me a 20 foot wall and I will show you a 20 foot ladder (or a tunnel). Simply put, a physical barrier is simply not that effective at preventing people from finding a way to enter this country, when they have traveled thousands of miles and will readily risk their lives for a chance to step on U.S. soil.

However, given how frequently Trump spoke of the wall, it is very concerning that he may actually try to greatly increase the miles of wall along the Southern border. But like much of what he says, where will the money come from? How can he simultaneously lower taxes while at the same time embarking on such a massive infrastructure program, aside from having Mexico pay for it? Perhaps there is the rub, or Trump’s out. “We will have the wall as soon as I convince Mexico to pay for it . . . which may take some time.”