FORECASTING THE EFFECTS OF TRUMP’S IMMIGRATION POLICY

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President-elect Trump promised immigration reform on the election trail. Right now, we don’t have a full sense of what his reform will look like. Still, there is no reason to panic or make hasty decisions. We should take the time to acquire the necessary facts by gathering knowledge from reputable sources. We must also be vigilant about notarios and scammers, who will prey on people who are confused or fearful. A good website to go to is https://www.uscis.gov/avoid-scams/common-scams.

He has a ten-point plan for immigration (www.donaldjtrump.com/policies/immigration). Notably, he will deport criminal aliens and end DACA (Deferred Action for Childhood Arrivals), which President Obama created by executive action to allow undocumented aliens who were brought here as children to legally stay and work in the U.S.  Also, he has stated he would like to create a Muslim database.

A database like this is not unprecedented. From 2001 to 2011, The U.S. government instituted a database of immigrants from Muslim-majority countries. It was called the National Security Entry-Exit Registration System, or NSEERS. Under this system, men over the age of 16 from countries the Bush administration considered “havens for terrorists” were required to register. Twenty-four of the 25 countries on the list were Muslim countries. It only applied to individuals who were entering the U.S. with non-immigrant visas, e.g. tourist, work, or student visas. The U.S. government required them to go to immigration offices for fingerprinting, photographs, interviews, and check-ins.  

President Obama rescinded the regulatory framework that allowed for NSEERS in December 2016. But, a Trump administration could create that framework again. He has called it a Muslim database, but that is a bit different from the NSEERS database. NSEERS was a database of people in the US from particular counties, which happen to be Muslim. He seems to want to create a database of all Muslims.

Although the executive branch has broad authority over immigration and foreign policy, and courts are unlikely to intervene when immigration policy has foreign policy consequences, it might be unconstitutional for the government to single out Muslim immigrants as a group. This type of database could be discriminatory, whereas a database of people from particular countries who happen to be Muslim is likely constitutional.

President-elect Trump may have stated that he would like to deport all “criminal aliens” on day one, but this may turn out to be incredibly burdensome. He has not defined what types of crimes would be used to determine if someone is a “criminal alien.” The term “criminal alien” is not defined in immigration law. Therefore, we have little information to use to speculate on who will be targeted. Many undocumented immigrants have convictions for minor crimes such as misdemeanors, probation violations, petty theft, and shoplifting, and are not a threat to public safety or national security. Until the Trump administration or Congress defines “criminal alien” we can’t know the potential effects on those undocumented people with minor convictions.

One of the most contentious and far-reaching actions he could take is to reverse President Obama’s executive action called DACA, which could subject those who have that status to deportation.  As of June 30, 2016, USCIS has approved close to 750,000 DACA applications since 2012. Each approved applicant receives permission to work in the U.S. It is not clear whether he would immediately revoke the benefits of DACA or let them expire. In fact, he has softened his stance on this issue recently by stating to Time magazine, “they got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.” A bipartisan group of senators even have introduced the BRIDGE ACT (Bar Removal of Immigrants Who Dream and Grow the Economy). It seems that DACA recipients and those eligible for it may end up being protected under a Trump administration.

Smith + Malek will continue to watch and learn as the Trump administration and Congress make changes to our immigration system. Consequently, we can be ready to act on the changes that will come. 

Contact Alycia Moss if you have questions about Immigration Law.