The Trump Administration and the Future of U.S. Immigration Law

Posted on Nov 15, 2016

Many immigrants are understandably concerned about their future under a Trump Administration. With the large immigrant population in South Florida, this has been a frequent topic of conversation since the election. Given that (President-elect) Trump gained popularity and traction during his campaign, in part, upon his promise to deport illegal aliens and build a wall on the southern border of the U.S., these concerns may appear to be well founded. In an effort to demystify and untangle some of the mess that seems to have been created during the course of the campaign, I offer what follows.

First, take a deep breath and understand that some of what you may have heard from our future President regarding all of the changes he will make to the U.S. immigration landscape was rhetoric designed to fire up his base so that he could get elected. The unfortunate side effect of the Trump campaign was that it stirred up somewhat of an anti-immigrant animus in some people. But, as with all campaign pledges and promises that presidential nominees make on the campaign trail, only some of them will ever be implemented and turned into law or policy. Those that Trump made regarding Immigration will prove to be no different.

Once Trump takes office, and the realities and demands of the position start to take over, I believe that he will have no choice but to make compromises and re-prioritize his goals as a President, particularly in consideration of the fact that: (1) federal financial resources are limited; (2) much of what he has pledged to accomplish with Immigration will require Congressional approval; and (3) that there will be forces, both in and outside of Congress that will push back on his extreme positions and efforts to enact all of his reforms. In other words, its not going to be as easy as he made it sound; nor will it be “fast” (one of his favorite words … besides “disaster”). There are many existing protections and firewalls that stand between Trump and the 11,000,000 undocumented aliens that he thinks he is going to take action against.

As I see it, every single policy change will either cost money or have down-stream consequences that will put new pressures and demands on some branch of our immigration system, which, in turn, will cost (more) money.

For example, the “Wall,” if its ever even built, will cost alot more money than Trump has stated ($25 billion according to experts) and it will require new funding to staff, maintain, and monitor. Tripling the size of Immigration and Customs Enforcement will obviously triple the size of the budget needed to pay salaries of, equip, house and feed these agents. Increasing the number of detentions and deportations of aliens will require more agents and employees, more vehicles, more computers, more facilities, more government lawyers, and more judges (throughout the entire court system … both administrative and federal courts) and all of these efforts will be opposed by a huge and determined force of immigration lawyers and pro-immigrant advocates … myself included … that will mount a defense at the administrative, trial, and appellate levels. There will be no free lunch for Trump if and when he tries to implement his campaign promises. An already overburdened and backed up system will only get worse, and the cost of financing THAT disaster will only multiply exponentially.

And even though he will have a Republican dominated Congress on his side, keep in mind that not all of them will have an appetite to spend the money that it will take to implement all of his proposals. In addition, there is a strong minority force of Democratic Senators that will probably help hold the line against his most extreme proposals. Those of you who have been following the developments inside of the Trump Transition Team can already see, after only one week, how disorganized and fractured the Trump Administration may be once the furious jockeying for positions is over and the dust settles. And as an aside, Trump has already started backing down from some of his campaign promises by signaling that he may compromise on and not repeal Obamacare and by filling (not draining) “the swamp” with Washington and political insiders.

It is also unlikely that all immigrants will be equally affected by whatever changes the Trump Administration will make. First, understand that most of the changes that we have seen in U.S. immigration law over the past 10 to 20 years have been administrative focusing on both benefits and enforcement, not statutory; meaning that much of the substantive immigration law has remained the same. This has a major implication, because, while changes in substantive immigration law will require congressional approval, Trump can unilaterally make changes in administration and enforcement without the need to seek the approval of Congress. For this reason, these are the most likely areas in which we may see the first changes. The policies and actions that were enacted and implemented under the Obama Administration over the past 8 years are particularly vulnerable and subject to immediate change, literally on the first day that Trump takes office.

What we will probably see is that Trump will keep some policies and eliminate and rescind others. For instance, while Trump promised to make it a top priority to deport all of the criminal aliens in the U.S., this has already been the number one enforcement priority of the Obama Administration. In fact, President Obama has actually deported more aliens than any other President in U.S. history (and more than all of the U.S. Presidents who served in the 20th century, combined!); and most of them were criminal aliens, or, aliens who had a criminal offense history. So, no major changes there … though that campaign promise did seem to capture and hold the attention of alot of voters.

As for programs and policies that may be eliminated, the first one on his list may unfortunately be DACA (Deferred Action for Childhood Arrivals). Because DACA was an administrative creation of the Obama Administration, Trump could do away with it immediately, just as quickly as Obama enacted it. I think this would be a huge mistake and such a bad place to start because it would unravel the protections (and employment authorization) that are currently provided to an estimated 728,000 “dreamers” who came to the U.S. as children, and who may be very deeply assimilated into in American society, with families, jobs, and financial obligations (mortgages and student loans) that they have undertaken.

To me, its very sad that our President, whose successful campaign was, in part, based upon getting his voters to fear undocumented violent “criminal” aliens, may start by taking action against a group which, at least in theory, should not even be among that class of violent criminal aliens (because they would lose DACA eligibility) and who, ironically, could hardly be said to have broken the U.S. immigration laws because they were brought here when they were children. Similarly, all of the standing executive orders of the Obama Administration (including, for instance, the I-601 stateside waiver program) could be rescinded and reversed. Many of these programs are based upon solid humanitarian considerations, practicality, and fairness; considerations which I think should be implied in any future U.S. Immigration policy.

I believe that its going to be virtually impossible (if not flat out impractical) to try and deport all 11,000,000 estimated undocumented aliens. Exceptions will have to be made based upon sound policy considerations. Both of these programs exist not to provide a random amnesty to the class of eligible applicants, but rather, because decisions were made that the our laws should not treat all undocumented aliens in the same way. Unfortunately, a future Trump administration threatens to undermine this logic and replace it with a binary system in which there are only legal and “illegal” aliens, with no grey area in between. I say that we need to respect, recognize and deal with the grey area and find a way to deal with it so that we can still be a nation of laws, but also one with a moral conscience.

Finally, please understand that I am not advocating open borders nor am I calling for the suspension of enforcement of our Immigration laws. Instead, I am in favor of a limited amnesty program that recognizes the idiocy and inhumanity of the policies that our future President has promised to enact.

While I may be biased because I have a stake in all of this – because it’s a part of how I make a living – I also have a lot of empathy for immigrants as a group because I have had the opportunity to work with over a thousand people and families over the past 20 years and I know whats at stake for all of them and that in real life its not as easy as the new Administration makes it sound … to sort through all of these folks and make determinations as to whether they can stay or have to go.

Yes, there are bad eggs in the bunch; but you will find that in any sample size or population. But for the most part, I believe that immigrants are very hard working people and their collective contributions to our country and our economy, currently and throughout history, far outweigh the associated burdens and down sides. It’s been reported that our undocumented aliens collectively pay an estimated $11,640,000,000 in federal, state and local taxes each year. And in addition to the contributions that they make to staff our U.S. work force, they stimulate our economy by purchasing the very goods and services that people like you and I provide and offer for sale.

I honestly believe that it’s a terrible idea and a complete waste of our tax dollars to try and process and remove all 11,000,000 undocumented aliens, just to prove that we are a country of laws and rules. At some point, reason and reality should take over and a more pragmatic and cost effective solution should be implemented.

Only time will tell the story.

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