By Susan E. Hill, February 22, 2017
We are preparing a newsletter with full coverage of all the new immigration policies since Trump took office last month. But until then, here is a short summary, with some explanation of how it can affect you/your family/your business.
Most of the new policies are a return to policies that already existed under President Obama, before his Executive Orders in 2014. Some of the policies require the DHS to write and publish Federal Regulations before they can go into place.
DACA is still in place, the President has not yet decided what to do about it – applications for DACA (“DREAMers”) are still being accepted, you may want to consider the risks/benefits of applying for its protections.
601A waivers are still in place—the Memos do not affect this policy which allows for pre-approval of certain waiver applications that are related to family green card petitions.
All persons without immigration status are now subject to detention and deportation/removal, no more “catch and release” – this means increased detention, and the President must get Congress’ approval to pay for more officers and more detention facilities. It’s unclear how this will go into effect immediately, but you should know your rights (see below) in case you are caught up and detained. Right now there are not enough resources for the government to do “mass round-ups.”
Deportation proceedings have not changed—with the exception of “Expedited Removal” (see below), you are entitled to see an Immigration Judge in deportation/removal proceedings, and you have due process rights to a full and fair hearing on your eligibility to remain in the U.S. The memos do not affect these rights. Currently in Los Angeles, an average deportation/removal case can take five years or longer, and you can remain inside the U.S. and sometimes get work authorization while you wait.
No change in bond eligibility—if you are detained, there are laws that govern your right to apply for a bond to be released from detention. The new policies do not discuss changes to these existing laws, or how you can qualify for release.
Special detention/removal priority for:
- Recent arrivals (less than 2 years here)
- Terrorism/security grounds (including gang members)
- Criminal record (arrest, conviction or even suspicion for a crime)— DHS proposes a “fast-track” system for criminals, but it’s unclear how this will occur
- Immigration fraud (false documents, etc.)
- Public benefits abuse (TANF, food stamps, Medicaid, etc.)
- Existing or prior removal/deportation order
Expedited Removal expanded to cover the entire country – this used to only apply within 100 miles of the border; now it covers the whole United States. It is applied to persons who cannot demonstrate they have been inside the U.S. for at least 2 years. It means immediate deportation without the right to see an Immigration Judge, and you can only appeal it in very narrow circumstances. An expedited removal order forbids you from returning to the U.S. for at least five years, and affects your ability to get a visa or green card in the future. Some people may be able to obtain a waiver to return more quickly, but waivers can be costly and time-consuming.
Expedited Removals will be returned to Mexico or Canada—if you entered the U.S. unlawfully from either Canada or Mexico, you will be sent back to those countries (not your own country). If you want to fight your removal, you have to do so via telephonic proceedings in those countries.
Credible Fear determinations to be restricted—the Memos do not give details on how this will be done. Credible Fear determinations are for those who are afraid to return to their home countries for fear of harm and persecution for grounds that are recognized by our refugee definition: race, religion, nationality, membership in a particular social group or political opinion. If you establish credible fear, then an Immigration Judge will hear your case to determine if you qualify for asylum protection.
Parole to be restricted—parole is a legal means to gain entry to the U.S., without being given a lawful immigration status. It is unclear on how this will be restricted, and whether it applies to the Military Parole in Place (MPIP) program that assists close relatives of U.S. citizen military members, and to grants of Advance Parole.
“Secure Communities” (287(g)) is reinstated and expanded – this is where local law enforcement (city police, county sheriff, state highway patrol, etc.) cooperates to turn over undocumented people they encounter to US ICE (ICE is the “internal” police for immigration inside the U.S. border). Now US CBP (Border Patrol) can use local law enforcement’s help as well with the border. “Sanctuary Cities” have indicated their refusal to help turn over people.
Unaccompanied minors to be restricted, parents may be targeted—again, the Memos do not provide details on how DHS plans to address the children who turn up at the border, fleeing violence in Central America. There are vague references to punish traffickers of unaccompanied minors (smugglers), and it is not clear if that would also apply to the children’s parents who want their children to join them in the U.S.
“Border crime” task force—this unit will be created to address crimes relating to unlawful border crossing: human smugglers, drug traffickers, identity theft, and more.
“VOICE” office to work with victims of crimes committed by immigrants—it will keep the victim informed of the status of deporting the perpetrator.
Border wall to be built—there are no details on how the funds will be secured to pay for the wall.