What Should You Do About Your Immigration Situation in a Donald Trump Presidency

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What did America do? In a presidential campaign full of mudslinging with both sides focusing on personality, Donald Trump's core beliefs and the details of how he would carry them out were never battle-tested. The nation waits to see what are his real core beliefs, and on what he is willing to compromise or negotiate. In a wide-ranging interview with the Wall Street Journal on November 11th, he said that he was willing to amend parts of Obamacare instead of wholly repealing it. Does this portend softening on his immigration positions? As we fall into the dystopian nightmare of post-election America and the crowning of Trump world, the hope of a gulf between his words and what he will ultimately do in the area of immigration is dimming as we see parts of the transition team and who is being considered for top posts. Senator Jeff Sessions of Alabama has always been seen as anti-immigrant, is Chair of a Republican dominated Senate subcommittee on immigration seen as heavily restrictionist, and has been elevated in the Trump circle with the demotion of Governor Chris Christie and the appointment of his own Chief of Staff, Rick Dearborn as transition director; Kris Kobach, the Secretary of State for Kansas, is a leader in the anti-immigration movement, especially in the fashioning of the restrictionist Arizona law SB 1070 which was defeated in the Supreme Court's decision of Arizona v. US in June 2012; and former mayor Rudy Giuliani has espoused anti-immigrant views ever since leaving the mayoralty of New York City. Among other posts, Senator Sessions is being considered for Secretary of the Department of Homeland Security (DHS) and Mr. Giuliani for Attorney General, the top two positions affecting immigration law. Mr. Trump on November 10th affirmed the importance of his agenda on immigration, listing that as one of his top three priorities. Mr. Trump is thus poised to inflict major damage on the hopes and aspirations of legal aliens and undocumented immigrants during the next 4 years, especially as he has Republican majorities in both the House and the Senate. The common argument that mass deportations and high exclusionary bars would weaken the country economically may unfortunately be answered by Republicans rightly or wrongly saying that they are willing to have the country sacrifice if that will solve the illegal immigration problem. That and the hope that a huge stimulus program to repair the infrastructure of the country would feed billions of government dollars to the white working class which would then replace legal aliens and undocumented immigrants in buying goods and services and propping up the housing market.

What is the road ahead for the undocumented immigrant? For the legal alien?

For undocumented immigrants, they appear headed back to the shadows and margins of society unless Mr. Trump does an about-face. They would be doomed to again live in fear of the loud knocks on the door in the early morning, the stops of their motor vehicles because they look foreign or because some parts of their vehicles require maintenance, and of arguments with others that could lead to a confrontation with the police and immigration authorities becoming involved. Some things that they can do to protect themselves are the following:

  1. Avoid the temptation and come-ons to do dangerous cases. In the past number of years, we have seen many people being misled into going forward with low percentage cases designed to put them in the immigration court when they were not in immigration proceedings. The classic case is one asking for the ten year green card (or more properly called cancellation of removal) which has three requirements: 10 years continuous residence in the US, good moral character, and exceptional and extremely unusual hardship to a US citizen or permanent resident spouse, parent or child. Most everyone has the first two requirements, but very few have the third and are relying upon the goodness of the immigration judge and the government attorney. Congress purposefully changed the standard in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) from "extreme" hardship to the much more difficult "exceptional and extremely unusual" hardship. The need to also have an understanding DHS attorney is because the Board of Immigration Appeals will generally support the government attorney if he or she appeals the immigration judge's favorable decision on the question of whether there was exceptional and extremely unusual hardship. In a Trump administration, the consequences of an adverse decision could be more swift and damaging than at present, especially as immigration court cases take much time to develop and the legal landscape promises to shift for the worse in the future. Readers should note that many potential cancellation of removal applications may make more sense as defensive applications if undocumented immigrants are caught by Immigration and Customs Enforcement (ICE) and placed in proceedings.
  2. Immediately work on a good case if you qualify. See a quality immigration lawyer if you believe that you have a case that can give you relief. He or she should be able to go over the details and see whether you have a realistic chance of having the case done successfully. You should not be afraid to pay a consultation fee as many good immigration lawyers charge one.
  3. Stay out of dangerous situations or places or associations with people that could get you arrested and a criminal record. One of the 10 major points of Mr. Trump's immigration program is the rapid deportation of criminal aliens ( "#3. Zero Tolerance for Criminal Aliens"). In the zeal to implement his program, government officials may fail to differentiate between those being charged or convicted, or whether the conviction is for a felony, misdemeanor, or violation. It is almost a certainty that immigration holds or detainers will come back in full force for those caught in the criminal justice system.
  4. If in your home and there is a raid by ICE, demand to see a warrant before opening the door. ICE agents have been known to disregard the need for search warrants in going after aliens in immigration raids.
  5. Unless there is a sufficient melting in Mr. Trump's position on the President's executive actions on immigration, those who have not yet put in an application for Deferred Action for Childhood Arrivals (DACA) and are eligible under present rules are probably better off not applying at this time if they have no immigration record. Mr. Trump has stated in speeches and in his 10 points on immigration ("# 5. Cancel Unconstitutional Executive Orders & Enforce All Immigration Laws") that he will cancel DACA and Deferred Action for Parental Accountability (DAPA) (the latter was never put into effect as it has been contested in the courts, but had been expected to be revived under Mrs. Clinton).
  6. A better candidate for survival under Mr. Trump although its expansion was part of the executive actions is the I-601A program (provisional waiver of the overstay bar) which has now incorporated an I-212 (provisional waiver of the removal bar) element to allow individuals to complete their immigration cases through an immigration interview outside the United States with a US consulate or embassy. There are two reasons for this optimism - the first being that the two reliefs are old elements of immigration law - just juxtaposed in position so that the applications can be made in the US prior to the interview overseas rather than afterwards; and the second that it forces aliens to leave the US to gain relief instead of being able to obtain it through an adjustment of status, a large bugaboo to anti-immigration forces.

For legal immigration, the road is less bumpy, but Mr. Trump has promised in another of his 10 points ("#10. Reform Legal Immigration to Serve the Best Interests of America and Its Workers") to rework the immigration system. He has already made known his displeasure with the tech industry which almost as a whole did not support his campaign. He has criticized Apple for its failure to release the unlocking code on a phone that the FBI attempted to unlock belonging to a terror suspect; and Amazon for what he considers its huge antitrust problem, nonpayment of taxes, and ownership of the Washington Post which heavily criticized him during the campaign. On the H-1B visas for specialized workers, he has disparaged the Disney company for its hiring of foreign staff which the replaced U. S. workers were forced to train.

The probability is that legal immigration reform will take a backseat to the crackdown on undocumented immigrants as the latter is more headline grabbing and red meat to the populist base that elected Mr. Trump. As the swearing-in of the new president is on January 20th and legal immigration is the lesser concern, the upcoming H-1B season in April will likely see little change from last year's. Reform of the employment-based permanent immigration system would involve legislative action and take even more time to implement. For this reason, the best action that intending immigrants can take in this writer's opinion is to start their cases as soon as possible.

There is the danger that in beginning cases at this time of uncertainty for both the undocumented and legal aliens, events may supersede and void the applications. However, the potential benefits of a finished case may greatly outweigh the risks of not going forward now on a viable case to the many traumatized by Mr. Trump's victory.

This article © 2016 Alan Lee, Esq. Reprinted with permission.


About The Author

Alan Lee, Esq. Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.


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