The U.S. has just elected Donald J. Trump as President of the United States of America. On January 20, 2017, there will be a Republican President and a Republican Congress. But what might that mean for immigration?
DACA and DAPA
Both DACA and DAPA were created through executive order by President Obama. (Note: DAPA has yet to be implemented as it was halted by the Texas District Court.) DACA was an agreement between the government and the applicant: tell the government where you are and in return, the government agrees not to deport you and to give you work authorization, a Social Security Number and a driver license.
By all accounts, DACA has been extremely successful. Thousands of young adults have been able to find better paid jobs and have moved themselves out of poverty. Work has given them a sense of purpose and well-being. They can drive without fear of being pulled over for driving without a license. They can open bank accounts, buy property and build credit histories.
Executive orders are easily cancelled. This could happen very shortly after January 20, 2017.
If DACA gets cancelled, that promise not to deport may also be cancelled and the government has your address.
If DACA is cancelled, then any pending applications for renewal or initial DACA will be denied.
If DACA is cancelled, then anybody who is on DACA will not be able to renew. Their work authorization will eventually expire and they are likely to lose their jobs. When their work authorization expires, their driver licenses will expire and they will be unable to renew the licenses.
Even if DACA is cancelled, anyone on DACA will still retain their Social Security Number.
President Trump ran his election campaign on mass deportation of illegal immigrants. Will that happen? I believe mass deportation is unlikely for several reasons.
First, the vast majority of people who could be deported are eligible for a green card through the immigration court. Getting a green card through the immigration court is known as "cancellation of removal." To qualify, applicants have to prove the following:
- They have lived in the U.S. continuously for the 10 years prior to being placed into deportation proceedings
- They have no significant criminal history
- They have a parent(s), a spouse or a child(ren) and at least one of those relatives is either a US citizen or a lawful permanent resident
- If the applicant is not allowed to remain in the U.S., that relative who is a U.S. citizen or lawful resident will suffer exceptional and extremely unusual hardship
The most challenging criteria for most people will be the last one: proving the hardship to their qualifying relative. That is hard but not impossible.
Second, it will require massive amounts of manpower to find the 11 million people who are living in the U.S. illegally. Immigration & Customs Enforcement (ICE) is responsible for finding illegal immigrants. At present, we have approximately 6,800 immigration and customs enforcement (ICE) agents, which equals 1 agent per 583 square miles. There are only two other pre-existing entities that could be quickly deployed for the purpose of increasing ICE's capacity for finding illegal immigrants: local police and the military reserves. Many local police are reluctant to take on immigration enforcement responsibilities because it takes police away from other policing priorities.
Third, most people will be referred to immigration court to apply for cancellation of removal and will face a long, slow process. The only ones who won't be referred to immigration court are those who voluntarily sign away their rights and those who have major criminal records that disqualify them from relief in the immigration court. The current immigration court system struggles to cope with 400,000 people. For speedy processing, the government would have to open more immigration courts as well as hire and train more immigration judges and attorneys. If those new courts don't materialize, then processing people through the existing courts will take decades. Furthermore, even after a successful trial, people will wait years for their green cards because the courts also can only issue 4,000 green cards each year. Excess demand goes on to a waiting list. Fortunately, while people wait for their trial dates and green cards, they are eligible for work authorization.
Fourth, it will require massive amounts additional funding, both to find the illegal immigrants and to process them through the immigration courts. This additional funding will be a taxpayer expense. The additional funding will mean either increased taxes or shifting government spending. Republicans typically do not favor increased taxes. Shifting government funds to support mass deportation would mean cutting government services. While Republicans often claim to support lower government spending, they might not agree on cuts, especially if their constituents benefit from the government programs in some way. Either way, there will have to be a negotiation with Congress about how much funding and where that funding comes from. This could take time.
In short, a mass deportation program is unlikely to happen and even if it does happen, will be a long process.
For all his bluster about deportation, there are some who believe his election increases the chances of immigration reform that provides a path to lawful residency, if not citizenship, for the illegal immigrant population. This probably would not happen immediately and would almost certainly be tied to further construction of a wall between the U.S. and Mexico. The construction of the wall would be to provide the assurances that we won't have a repeat situation 20 years from now.
If immigration reform does happen, it will have to be tied to not only construction of the wall, but also changes to some of the underlying principles of U.S. immigration. Right now, U.S. citizens can sponsor their siblings, their parents, their young children and adult children without any restrictions other than patience while on the waiting list for siblings and adult children. Furthermore, anybody sponsored by an employer, can bring along a spouse and children. The same is true for asylees and people who are victims of certain crimes or human trafficking. At present, 85% of our immigration is directly or indirectly linked to a family relationship. This is an important reason why the 1986 amnesty failed: people got green cards, became citizens and started sponsoring other family members. It is the opportunity to sponsor parents and siblings that causes the most problems. We may have to sacrifice some family-based immigration to ensure the passage of immigration reform.
The biggest advantage of an immigration reform program that allows illegal immigrants to get green cards without going through the immigration court is simply this: it costs the taxpayer nothing. Why? Because USCIS, the government agency that would handle the immigration reform program, is funded almost entirely through application fees
If you have a spouse or a parent(s) who are either U.S. citizens or lawful permanent residents, then speak with an immigration attorney about whether you qualify to get a green card. You might have to return to your country for your immigration interview, but you would be able to become a lawful permanent resident and prevent deportation. The most important facts that determine your eligibility are when did you last enter the U.S., how many times have you entered the U.S. and what is your criminal record. If you do not have a significant criminal history AND you have only ever entered the U.S. once OR you have not left the U.S. since April 30, 1997, then you can get a green card.
If you don't have a spouse or a parent who is U.S. citizen or lawful permanent resident, then whether you believe mass deportation is imminent or immigration reform is imminent, what you need to do is the same: be prepared. That means making sure you have documents that prove you have been here for the last 10 years, if possible. Have your children's U.S. birth certificates, including step-children (if you married their parent before the child was 18 years old) and adopted children. Stay out of trouble with the police. If you already have a criminal record, consult with an immigration attorney at the possible immigration consequences.