Trump’s incoming administration—An immigration attorney’s perspective
On November 9, 2016, once all votes had been accounted for and all electoral votes had been assigned, the United States selected their new president elect: Donald Trump. Prior to Donald Trump’s election, he released his “100-day action plan to Make America Great Again. [A] contract between [himself] and the American voter.”1 Per Mr. Trump’s plan, and within the first day of his administration, in summary, he intends to take the following five actions to restore security and the constitutional rule of law:
“FIRST, cancel every unconstitutional executive action, memorandum and order issued by President Obama;
SECOND, begin the process of selecting a replacement for Justice Scalia from one of the 20 judges on [his] list, who will uphold and defend the Constitution of the United States;
THIRD, cancel all federal funding to Sanctuary Cities;
FOURTH, begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back; and
FIFTH, suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.”2
Moreover, per Mr. Trump’s plan and within the first 100 days of his administration, he pledges to “end Illegal Immigration Act Fully-funds the construction of a wall on our southern border with the full understanding that the country Mexico will be reimbursing the United States for the full cost of such wall; establish a two-year mandatory minimum federal prison sentence for illegally re-entering the U.S. after a previous deportation, and a five-year mandatory minimum for illegally re-entering for those with felony convictions, multiple misdemeanor convictions or two or more prior deportations; also reform visa rules to enhance penalties for overstaying and to ensure open jobs are offered to American workers first.3 Upon the country learning about Mr. Trump’s election, documented and undocumented immigrants alike began to ponder their future (and their family’s future) within the United States and began to fear what potentially may become of their current immigration status. Hence, I called upon immigration attorney (a go-go) Diana Mendoza Pacheco4 to discuss what might be on the horizon for immigrants. My interview of Ms. Pacheco follows a brief background of the current status of the DACA Program to benefit certain children of undocumented immigrants that was instituted by President Obama.
On June 15, 2012, President Obama, via executive order, instituted a new policy for undocumented immigrants who came to the United States as children and who met certain guidelines, to remain temporarily within the country pursuant to a form of prosecutorial discretion also known as “deferred action”5 or Deferred Action for Childhood Arrivals (DACA). In essence, the Department of Homeland Security (DHS) would not remove qualifying individuals who were brought into the United States as children. Instead, DHS would focus its enforcement resources on the deportation of individuals who pose a danger to the community or who have committed a crime of moral turpitude6 (“significant” misdemeanors or a felony offense).7 Moreover, besides deferred action, DACA also granted an approved applicant lawful permission to work within the country.8 In order to apply for DACA, besides meeting the prerequisite qualifications, the applicant must undergo a substantial and in-depth background check including full and accurate disclosure of the applicant’s personal history and information. However, it must be noted that while DACA provided a means to defer removal proceedings, there is no direct path to permanent residence or citizenship, and it can be revoked at any time.9 Over 728,000 immigrants have become “DACAmented” since the policy was announced.10
Q: Diana, with everything we are hearing about in social media and the news with regard to immigrants, and now knowing Trump’s 100 day plan, what are some of the concerns impacting not just Hispanic immigrants, but immigrants in general?
A. First of all, immigration is more than just undocumented immigrants. You have a whole myriad of issues that go with immigration—you have the people that came here crossing the border; over-stayed visas; people that came to this country through family or through employment; or through a refugee program. However it is that they came to this country, they are all not going to have the same background; they are all not going to have the same concerns.
That being said, I have received calls from clients that are scared. I just had a conversation the other day with a client who is undocumented, as is his wife, and they are both hard working people. The wife has a business that she runs and he works for a company as a significant player within the company. These people have been able to save up and work hard and have been able to amass three properties here in the U.S. Hence, being undocumented and having built his whole life here and having his family here, his questions are, “How do I plan?” “What do I do?” “What is going to happen?”
We do not have a magic crystal ball to know exactly what actions Trump is going to take. We perhaps can guess from the actions that he has taken so far that he has the intent to take a hard line on immigration. So, what may have first been perceived as political rhetoric, now, as we see and hear of the people that he is appointing as his advisors and staff, it appears that Trump is sticking to what he pledged. Hence, I told my client to plan. Plan as you have been doing all these years for the worst case scenario which is that you must be prepared from one moment to the next to leave the country. I am not trying to scare my client—this is not about scaring—I am trying to have my clients prepared.
Q: How do you recommend that immigrants “plan” as you have mentioned?
A. For example, if you have information that is important to you, have it entrusted to someone you trust. For example, with regard to my aforementioned client, his wife, children and their properties: have a Power of Attorney drafted so that if you are no longer present or able to act, you have identified someone in the United States that can execute certain transactions for you. Should a “Redada” come to your employment (when ICE comes to employment office and rounds up undocumented people and does document checks, and if those who are ‘rounded up’ cannot prove lawful status, they are sentfor processing) and you are one of the unlucky ones to have to face it, you won’t be completely out of luck. Estate planning is also highly recommended. Take whatever steps are necessary should the worst case scenario happen: plan, but do not panic.
Q. Assuming the worst case scenario does happen and an immigrant is deported due to his undocumented status, does the undocumented immigrant lose any rights to their properties within the United States?
A. Foreign nationals have the right to have property in the U.S. Hence, to my understanding, the government can only seize their property via the appropriate laws.
Q. So, because of the mere fact that someone is undocumented or is deported, he or she does not automatically lose any property rights?
A. That is correct.
Q. You mentioned that you have received phone calls from your clients saying that they are scared now that Mr. Trump has been elected as our incoming President; why are they scared?
A. As I mentioned before, it appears that Trump does have the intent to take a hard line on immigration, especially when we take a look at the people that he is appointing as his administrative staff. With that said, one of the reasons my clients are scared is due to the uncertainty as to their immigration status—My client’s children are old enough to know what is going on and they are old enough to be scared for their parents and ask: “Are they going to send you back to Mexico?”
Again, I tell my clients to keep the panic level down as a lot of legislation needs to happen to change things. However, in my opinion, the first thing that is going out is DACA.
Q: Can you tell us a little about DACA?
DACA as we all know was created via executive order as our current president was blocked with regard to immigration reform. He went ahead and resorted to the executive order which was clearly not welcomed by many people. DACA had two main components: 1) the security that you would not be deported and (2) that the government would stay removal [deportation] and the individual would have the opportunity to work (employment authorization).
Q. Is DACA still valid today?
DACA is still valid. There are two versions of DACA. The first version of DACA launched in 2012 is still in effect; however, there is currently an injunction on the 2014 version that expanded DACA. The 2014 version has not been held unconstitutional by the Supreme Court, but there was a 4 to 4 split decision, in effect upholding the fifth circuit court’s decision to block the expanded version of DACA on procedural grounds. The ruling did not address the constitutionality of the President’s order.
Q. Why do you believe that DACA will be the first thing to go?
Trump has vowed to get rid of it the moment he enters office. President-elect can decide if he would like to repeal DACA.
Q. How is this uncertainty affecting undocumented immigrants?
A. People who are working under DACA and who are up for renewal feel as if they are in limbo based upon Trump’s election. Those cards that are issued under DACA are issued for a certain amount of time. [Upon Trump taking office], some people will still have time remaining via DACA and the question is, “Is [Trump] going to take it away?” “What happens to my employment authorization if DACA goes away?”
That is not only a concern for the immigrant but also for employers because the employers are also aware that a person has an employment authorization (also known as Employment Authorization Document), hence, they are also wondering “What is going to happen then?” “Will the employers be going afoul of the law?” Based off of current law, there is a specific procedure that must be followed to repeal employment authorization documents (EADs) and notice must be given to EAD holders. Should DACA be repealed, EAD cards can also be revoked.
With that said, another example is NAFTA—Trump has said he wants to get rid of NAFTA—and there are employment visas given under NAFTA andven those can become compromised. You remove NAFTA and you remove the visas. There is so much that is up in the air and people know that things will become very hard for immigrants and for employers as well.
Q. Are there any other concerns should DACA be repealed?
A. Yes. The second main concern is that DACA requires someone to voluntarily tender their information to the government and identify who [they] are, where [they] live and any information needed to reach the person. When DACA began, the government promised that they were only going to be using the information for purposes of DACA and would not disclose it. However, if the person appointed by Trump to create policies does in fact change or repeal DACA, the information component may change as well. Hence, it is a fear that many people also have.
Q. What kind of information do people have to provide under DACA?
A. Any applicant must submit themselves to a very extensive background search because in order to be eligible for DACA, among other things, they must not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.
Q. Is it safe to say that now DACA holders are concerned as to what will happen to the information that they have provided?
A. Yes, but in my personal opinion, I do not believe that DACA holders will be placed on a high priority list [for deportation]. Obama was one of the most deportation heavy presidents that we have had—tons of people were deported under Obama’s administration. The way that Obama did it, he prioritized criminals for deportation and if you have been convicted of a major crime, you will be on that priority list. Hence, I do not think that DACA holders will be at the top of the list. However, Trump may want to follow what Obama has been doing pretty aggressively and perhaps even elevate (WHAT?) to a next level.
Q. If there are any DACA holders who are up for renewal, should they renew?
A: I would recommend people not make any new applications because you will be giving information that we do not know how the new administration might use it. Some immigration attorneys are saying that if you are up for renewal, go for it. My opinion? If you think you can renew prior to Trump coming into office, it may be worth a shot, but January is right around the corner.
Q. Are you aware of any deportation procedures now that may change under Trump’s administration?
A. I do not concentrate my practice in deportation defenses, but I do know that there is currently a “catch and release” program under which[INS] will catch undocumented immigrants and then release them (they are actually released prior to even having a hearing because they are given low priority). That procedure has not been very popular or well received with the new and incoming administration, so perhaps that might be another change we can expect. That obviously puts people at greater odds, because at least if you were caught and released, you had a greater opportunity to prepare things if you were going to be deported.
Q. What would you like the public to know about immigration?
A. Immigration is a civil matter, not a criminal matter. Hence, undocumented immigrants are not “criminals” for being undocumented in this country as their violations are not a criminal matter. In other words, immigrants might be called “illegals” for breaking laws, but those laws are not criminal laws.
__________