The Trump Administration and the Future of U.S. Immigration Law
Editor’s Note: This article was originally written following the 2016 presidential election and reflects the immigration-law concerns and political climate at that time. It is preserved and reorganized here because many of the broader points remain useful: campaign promises do not automatically become law, immigration policy changes often take time, and immigrants should make legal decisions based on their specific circumstances rather than fear or rumor.
Introduction
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 United States, these concerns may appear to be well founded.
In an effort to demystify and untangle some of the confusion created during the course of the campaign, I offer what follows.
Take a Deep Breath
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.
Campaign Promises vs. Government Reality
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 President.
That is particularly true because federal financial resources are limited; much of what he pledged to accomplish with immigration will require Congressional approval; and there will be forces, both inside and outside of Congress, that will push back on his extreme positions and efforts to enact all of his reforms.
In other words, it is not going to be as easy as he made it sound, nor will it be “fast.” There are many existing protections and firewalls that stand between Trump and the estimated 11,000,000 undocumented aliens that he thinks he is going to take action against.
Immigration Enforcement Costs Money
As I see it, every single policy change will either cost money or have downstream 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 it is ever even built, will cost a lot more money than Trump has stated and will require new funding to staff, maintain, and monitor it. Tripling the size of Immigration and Customs Enforcement will obviously require a much larger budget to pay salaries and to equip, house, and support these agents.
Increasing the number of detentions and deportations 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.
And all of these efforts will be opposed by a huge and determined force of immigration lawyers and pro-immigrant advocates — myself included — who will mount defenses 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.
Congress and Political Resistance
Even though Trump will have a Republican-dominated Congress on his side, not all members of Congress 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 likely help hold the line against his most extreme proposals.
Those who have been following developments inside the Trump Transition Team can already see how disorganized and fractured the Trump Administration may be once the jockeying for positions is over and the dust settles.
As an aside, Trump has already started backing down from some of his campaign promises by signaling that he may compromise on and not fully repeal Obamacare and by filling, rather than draining, “the swamp” with Washington and political insiders.
Administrative Policy vs. Changes in the Law
It is also unlikely that all immigrants will be equally affected by whatever changes the Trump Administration makes.
First, understand that most of the changes 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. In other words, much of the substantive immigration law has remained the same.
This distinction matters. Changes in substantive immigration law generally require Congressional approval. But a President can make changes in administration and enforcement without seeking the approval of Congress. For this reason, administration and enforcement are the areas where we are most likely to see the first changes.
The policies and actions enacted and implemented under the Obama Administration over the past eight years are particularly vulnerable and subject to immediate change, literally on the first day that Trump takes office.
Criminal Enforcement Priorities
What we will probably see is that Trump will keep some policies and eliminate or rescind others.
For instance, while Trump promised to make it a top priority to deport all criminal aliens in the United States, this was already the number one enforcement priority of the Obama Administration. In fact, President Obama deported more aliens than any other President in U.S. history, and most of them were criminal aliens or aliens who had some criminal offense history.
So, in that respect, there may not be as much change as many people assume, even though that campaign promise captured and held the attention of many voters.
DACA and Other Obama-Era Programs
As for programs and policies that may be eliminated, the first one on Trump’s list may unfortunately be DACA, or 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 a bad place to start because it would unravel the protections and employment authorization currently provided to hundreds of thousands of “Dreamers” who came to the United States as children.
Many of these individuals are deeply assimilated into American society, with families, jobs, mortgages, student loans, and other financial obligations.
To me, it is very sad that a President whose successful campaign was based, in part, on getting voters to fear undocumented violent criminal aliens may start by taking action against a group that, at least in theory, should not even be among that class of violent criminal aliens because they would lose DACA eligibility. Ironically, many of these young people could hardly be said to have intentionally violated U.S. immigration laws because they were brought here as children.
Similarly, other standing executive actions of the Obama Administration, including programs such as the I-601A stateside waiver process, could be rescinded or changed. Many of these programs are based on humanitarian considerations, practicality, and fairness — considerations that should have a place in any future U.S. immigration policy.
The Problem With Treating Every Case the Same
I believe it is going to be virtually impossible, if not flat-out impractical, to try to deport all estimated 11,000,000 undocumented aliens. Exceptions will have to be made based upon sound policy considerations. Programs such as DACA and the stateside waiver process do not exist to provide a random amnesty to every eligible applicant. They exist because policy decisions were made that 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 gray area in between. I believe we need to respect, recognize, and deal with that gray area so that we can still be a nation of laws, but also a nation with a moral conscience.
I Am Not Advocating Open Borders
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 and practical approach that recognizes the unfairness, impracticality, and inhumanity of trying to remove every undocumented person from the United States without regard to family ties, work history, humanitarian factors, age at entry, length of residence, or contributions to the country.
My Perspective as an Immigration Attorney
While I may be biased because I have a stake in all of this — because immigration law is part of how I make a living — I also have a lot of empathy for immigrants as a group. I have had the opportunity to work with many people and families over the course of my career, and I know what is at stake for them. In real life, it is not as easy as the new Administration makes it sound to sort through all of these people 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. For the most part, I believe that immigrants are very hardworking people, and their collective contributions to our country and our economy, currently and throughout history, far outweigh the associated burdens and downsides.
In addition to the taxes many immigrants pay, they contribute to the U.S. workforce and stimulate the economy by purchasing the very goods and services that people like you and I provide and offer for sale.
Final Thoughts
I honestly believe that it is a terrible idea and a complete waste of taxpayer dollars to try to process and remove all undocumented aliens simply to prove that we are a country of laws and rules. At some point, reason and reality should take over, and a more pragmatic, cost-effective, and humane solution should be implemented. Only time will tell the story.
Need Immigration Advice?
Every immigration case is different. If you are concerned about how changes in immigration law or policy may affect you or your family, you should seek advice based on your specific facts, immigration history, and goals. To schedule a consultation with South Florida immigration lawyer Sean D. Hummel, call (954) 385-3111.
About Sean D. Hummel
Sean D. Hummel is a South Florida immigration attorney representing individuals and families in immigration matters, including family-based green cards, naturalization, citizenship issues, waivers, and related immigration cases. His office is located in Deerfield Beach, Florida.
Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Immigration laws, policies, procedures, and enforcement priorities can change, and every case depends on its own facts. You should consult with an experienced immigration attorney regarding your individual circumstances.
