Immigration Law and Policy After the Election: Five Key Points
The 2016 election is consequential and has instilled great concern in immigrant communities. Following Inauguration Day, President Donald Trump signed several executive orders and policies on immigration, some of which have been followed by implementation guidelines by the Department of Homeland Security (DHS) and Department of Justice (DOJ). Below are five points to educate the community about immigration law and policy.
POINT ONE: The main statutory framework for immigration law remains the same today. Congress passed the Immigration and Nationality Act (The Act) in 1952 and this remains the framework for immigration law. The Act defines categories for lawful admission (temporary and permanent), and grounds that make people deportable (or ineligible for admission in the first place). The Act describes the procedures for removal, and provides a few forms of relief and protection for qualifying individuals, including for those who fear persecution in their home country. Inherent and contained in the Act is the DHS’ authority to exercise prosecutorial discretion (i.e., decision to refrain from bringing immigration charges).
POINT TWO: Even if Congress has the authority to change the statute or fund certain enforcement actions (i.e., deportation, border wall), implementation may take years. To change or repeal a section of the Act would require an act of Congress. Employees of DHS and DOJ will continue to process and adjudicate applications and are required to follow these laws unless and until Congress passes new laws. If these laws are not followed, violations may be the subject of litigation in the courts.
POINT THREE: Most regulations for immigration remain the same today. A change or repeal to regulations published during President Obama’s Administration may require new regulations and a time period with written notice and comment from the public. For example, DHS published a final rule in 2016 allowing qualifying F-1 students with STEM degrees (science, technology, engineering, and mathematics) to apply for a 24-month extension of their optional practical training (OPT). The change was made by regulation after a period of public notice and comment. If a regulatory change does not require “notice and comment” the timeline could be quicker. Importantly, regulations created by the Executive Branch must comply with the U.S. Constitution and statutes.
POINT FOUR: The new administration can exercise and has exercised its authority to “revoke” or change immigration policies that were originally crafted by the Executive Branch without legislation or a regulation. As one illustration, after two Executive Orders on immigration enforcement were signed by President Trump during the week of January 22, DHS Secretary John Kelly issued “implementing” memoranda and declared “[A]ll existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal are hereby immediately rescinded…[with an exception for the order authorizing Deferred Action for Childhood Arrivals]” The new DHS memorandum sets out the following priorities for immigration enforcement: those who“(I) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; (5) have abused any program related to receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” The memorandum also suggests that everyone is priority for immigration enforcement by cautioning: “All of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States.”
On September 5, 2017, the administration also announced the rescission of the DACA or Deferred Action for Childhood Arrivals Program. DACA was announced by former President Barack Obama in June 2012 and to date has enabled nearly 800,000 people who entered the United States at a young age, are in school or graduated and meet other policy requirement to request a form of prosecutorial discretion call “deferred action” as well as permission to work.
Notably, DHS has indicated that the Sensitive Locations Memo remains in effect: This memo instructs immigration and border agents to avoid undertaking enforcement actions at sensitive locations, which include:
o Schools, such as known and licensed daycares, pre-schools and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events, and school bus stops that are marked and/or known to the officer, during periods when school children are present at the stop;
o Medical treatment and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities;
o Places of worship, such as churches, synagogues, mosques, and temples;
o Religious or civil ceremonies or observances, such as funerals and weddings; and
o During public demonstration, such as a march, rally, or parade.
Changes to immigration policy and regulations must obey the U.S. Constitution and statutes like the Immigration and Nationality Act and the Administrative Procedure Act (APA). Otherwise, there will be legal challenges in the courts, as happened most recently when groups challenged a November 9 policy seeking to prevent individuals and families coming irregularly to the southern border from seeking or being granted asylum. Similarly, aspects of the DACA policy have been retained because federal courts have determined that the legal justification by DHS and DOJ for ending the policy was a mistake of law and in violation of the APA.
POINT FIVE: Every noncitizen has rights and responsibilities.
• You have the right to remain silent.
• You have the right to speak to a lawyer. Before you sign anything, talk to a lawyer.
• You (or your children) have the right to an elementary and secondary school education.
• Organize your documents; make copies of important paperwork relating to your children, health, finances, and more. Carry any valid immigration document.
• Create a Safety Plan. A safety plan should include having the number of a friend memorized, telling that friend where they can find your important documents including your “A-number,” and putting a plan in place for your children’s care in case you are detained.
• Do not open your door (ICE must have a warrant signed by a judge to enter).
• Carry a “know-your-rights card” and show it if an immigration officer stops you.
• Know your rights when you face anti-Muslim discrimination.
This document was updated on November 11, 2018, and does not constitute legal advice. Specific questions should be directed to a qualified immigration attorney or representative.