Trump faces hurdles turning immigration pledges into reality

Trump faces hurdles turning immigration pledges into reality

Both the general public and immigration experts continue to speculate on the likelihood of Trump’s campaign rhetoric becoming reality. I weighed in on the debate with Scott Glover of CNN. The entire article is available here on CNN’s website. A transcript is included below

Trump faces hurdles turning immigration pledges into reality

Scott Glover, CNN | January 4, 2017

(CNN) President-elect Donald Trump will face several significant hurdles if he attempts to quickly make good on a campaign promise to deport millions of undocumented immigrants from the United States, according to multiple immigration experts and law enforcement officials interviewed by CNN.

The likely obstacles to any mass deportation effort include required congressional approval for increased spending, vows of resistance by leaders in several major cities that are home to large numbers of potential deportees and long waits for removal proceedings in US immigration court.

“He’s hamstrung,” said Muzaffar Chishti of the Migration Policy Institute, a non-partisan Washington-based think tank. “He did not understand that we don’t have a monarchy. We did not elect King Trump.”

As Trump’s inauguration approaches, there has been widespread handwringing among undocumented immigrants and their advocates as they wait to see how US immigration policy may change under a Trump administration. But there is mounting evidence that whatever actions he takes will not match the harsh rhetoric of the campaign trail.


What the immigration battle could look like under Trump

He’s already waffled on his promise to build a wall, saying that existing fencing may suffice in some sections of the border. His controversial pledge of a temporary ban on all Muslims entering the US seems all but forgotten.

That leaves the deportation pledge.

“Mr. Trump will not be able or willing to engage in the kind of mass deportations that he promised in his campaign,” said Stephen Legomsky, a professor emeritus at Washington University School of Law in St. Louis.


‘More difficult than it sounds’

“Simply finding large numbers of undocumented immigrants with criminal records is much more difficult than it sounds,” said Legomsky, who served as former chief counsel to US Citizenship and Immigration Services from 2011 to 2013 and as a senior counselor to Homeland Security Secretary Jeh Johnson in 2015.

Legomsky, who has since left government, said any such effort would be “incredibly laborious” and cost prohibitive.

Early in the presidential campaign, Trump said all 11 million illegal immigrants in the US should be deported. He seemed to soften his stance after the election, telling CBS’ “60 Minutes” that he would prioritize going after undocumented immigrants who had committed crimes beyond being in the country illegally.

The irony of that approach, experts say, is that it would be much easier for Trump to locate and begin deportation proceedings of non-criminals such as those granted temporary amnesty under President Barack Obama’s Deferred Action For Childhood Arrivals Program.

The program, known as DACA, granted some 840,000 childhood-arrivals to the US temporary protection from deportation and issued them work permits. It was created by executive memorandum in 2012 and could be immediately rescinded by the Trump administration, stripping DACA participants of their protection against deportation.
Going after undocumented immigrants with criminal records could prove more difficult and would likely require congressional approval to pay for more Immigration and Customs Enforcement agents to round up potential deportees who do not want to be found.

Key to that effort would be the cooperation of local law enforcement who run county jails and have the ability to alert ICE agents to the presence of undocumented immigrants with criminal records in their custody. Such inmates can be placed on an ICE “detainer” indicating that they are to be handed over to immigration officials when they finish their sentences. This could provide a steady flow of potential deportees without having to conduct costly and time-consuming searches.

But many big cities with large undocumented immigrant populations have said they would refuse to cooperate with such deportations under most circumstances. Some cities, including Los Angeles and Chicago, have set up legal defense funds for undocumented immigrants facing deportation.


Trump’s threat

Trump has threatened to withhold federal funding from cities that don’t cooperate with US immigration efforts — an approach that could cripple local schools, police departments and airports, among others.

But Chishti predicted any such effort would face an immediate legal challenge. He said there were several Supreme Court cases that stood for the proposition that the federal government can’t indiscriminately “hold a gun to the states’ head.”

A threat to withhold funds, he said, “must be in relation to the dispute at hand.”

Even if officials were able to initiate a surge in deportation cases, such an effort would likely stall in immigration court where there is currently a backlog of more than a half million cases and a wait time of nearly two years.

Mark Krikorian, executive director of the Center For Immigration Studies, a non-partisan think tank in Washington, said Trump’s campaign pledges to deport millions amounted to an “Archie Bunker moment” that should not have been taken seriously.

“He’s not going to be snapping his fingers and deporting millions of people over night,” said Krikorain, whose group’s motto is “Low-Immigration, pro-immigrant.”

“That’s not realistic,” Krikorian said. “No one thinks that’s going to happen.”

But Krikorian said “it’s very plausible” that Trump could ramp up deportations by 25% or more in 2017 and return to levels seen under Presidents Bill Clinton and George W. Bush, which he said reached about 400,000 a year when Bush left office.

That, he said, could be done without significant budgetary increases and despite resistance from sanctuary cities.

“I think the other side is making it seem more complicated than it needs to be,” he said.

Stephen Yale-Loehr, who teaches immigration law at Cornell Law School, agreed that Trump would be able to have meaningful impact during the first year of his presidency, but not to the extent suggested during the campaign.

“On the campaign trail things are not nuanced. They’re black and white,” Yale-Loehr said. “It takes a while to turn the battleship of bureaucracy around.”

Law360: The Biggest Immigration Cases of 2016

Law360: The Biggest Immigration Cases of 2016

I spoke to Allissa Wickham of Law360 regarding the biggest immigration cases of 2016: DAPA, the EB-5 visa program, refugee resettlement issues, the definition of “aggravated felony”, and others. A transcript of the article is included below.

The Biggest Immigration Cases Of 2016

December 16, 2016
Author: Allissa Wickham (subscription required)

There was no shortage of immigration litigation this year, with the U.S. Supreme Court deadlocking in the case over Obama’s executive actions, federal securities regulators bringing a major suit over alleged EB-5 visa program fraud, and courts hearing challenges to work authorization rules for immigrants.

Here, Law360 looks back at some of the biggest immigration cases from 2016.

The Executive Action Showdown: United States v. Texas

Without a doubt, one of the biggest immigration cases this year was U.S. v. Texas, the blockbuster legal dispute over President Barack Obama’s executive actions, which would have allowed potentially millions of immigrants to defer deportation and apply for work permits.

The case specifically dealt with a possible expansion of the popular Deferred Action for Childhood Arrivals program for immigrants who came to the U.S. as children, as well as a new program for immigrant parents, known as Deferred Action for Parents of Americans and Lawful Permanent Residents.

The initiatives — which Obama announced in 2014 after Congress dropped the ball on immigration reform — would have allowed immigrants to defer deportation and apply for work permits for three-year periods, and could have affected an estimated 4.4 million people. But a host of states sued over the policies, and the policies were soon blocked by a Texas court.

The dispute eventually landed at the Supreme Court, but by the time the justices ruled on the appeal in June, their bench had been reduced to just eight members, following the death of Justice Antonin Scalia. The lack of a ninth justice proved crucial, as the justices tied in the case, thereby upholding a lower court’s block against the immigration policies, and delivering a major blow to Obama’s immigration legacy.

“Obama’s immigration legacy is diminished greatly because of the failure to win that battle,” said Ian Macdonald of Greenberg Traurig LLP, adding that DAPA, “as a result of that, is dead.”

Indeed, it seems highly unlikely that the Trump administration will fight for DAPA in the lower courts, as Trump has said he will end Obama’s executive actions on immigration. Perhaps sensing the writing on the wall, the government recently said the lower court case challenging the executive actions should be halted until after President-elect Donald Trump is inaugurated.

Additionally, with its tie decision, the Supreme Court didn’t create any new precedent about the scope of the president’s authority, meaning there are still lingering questions about the scope of the president’s power, on top of the unsure future laying ahead for DAPA and DACA.

“I think in addition to leaving the specific state of DACA uncertain, it also leaves large questions about the general scope of the president’s authority to use prosecutorial discretion,” said Stephen Legomsky, professor emeritus at Washington University School of Law, and a former Chief Counsel with U.S. Citizenship & Immigration Services. “Not just in immigration, but generally.”

Trouble at Jay Peak: SEC v. Ariel Quiros

In a jaw-dropping development, the U.S. Securities and Exchange Commission sued Jay Peak, Vermont, ski resort owner Ariel Quiros and CEO William Stenger in April, with regulators saying they engaged in an eight-year scheme that raised $350 million from investors hoping to obtain visas through the EB-5 program.

The SEC claims that Quiros and Stenger, through various companies, used $200 million raised from hundreds of EB-5investors in a “Ponzi-like fashion” to cover losses in unrelated projects, and to pay for $50 million in Quiros’ personal expenses. The case stunned the EB-5 community, not only because of its high stakes, but also because it involved Stenger, a well-known figure in the field, who ultimately settled in September.

The suit is perhaps the most high-profile case to date regarding the EB-5 visa program, which gives green cards to immigrants who invest $500,000 and create new jobs in the U.S. But the suit is far from the only controversy surrounding EB-5, as the SEC has also brought other suits over the program in Florida and Washington.

“I think Jay Peak was the … most noteworthy litigation in the EB-5 area, but there were several other cases that were brought,” said Stephen Yale-Loehr of Miller Mayer LLP, and a professor of immigration law practice at Cornell Law School. He pointed not only to the case involving the Pacific Proton regional center in California, but also suits from EB-5 investors themselves.

The EB-5 cases may also play out against a backdrop potential legislative and regulatory changes this spring, as efforts to reform the EB-5 program could finally gain traction before its regional center component faces expiration once again in April.

Battles Over Immigrant Work Authorization: H-4 and OPT

Challenges to work authorization for certain immigrants also saw plenty of action this year, for both people on student visas and for the spouses of skilled immigrant workers.

First, the fight over a program that lets foreign nationals on student visas work after their studies — known as optional practical training — took an interesting turn this spring, when the D.C. Circuit found that a challenge to a rule extending the program for certain students by 17 months was moot.

The ruling came just three days after a new rule went into effect, which allows certain foreign students with science and technology degrees to extend the length of the work program by 24 months. Undaunted, the same union lodged a new complaint in June, challenging the revised regulation, and that case is still ongoing.

Meanwhile, in September, a judge sided with the government in a challenge to a rule letting H-4 visa holders, who are married to H-1B visa holders, seek work authorization. A group of information technology workers who claim they were replaced by H-1B visa holders is appealing the decision, setting up another battle at the D.C. Circuit.

Notably, whether it’s lawful to release a regulation stating that H-4 visa holders can work hinges on the interpretation of a certain statutory provision, known as Section 274(A)(h)(3) of the Immigration and Nationality Act, according to Legomsky. This could therefore be one issue to keep on eye during the appeal.

“There are certain groups of noncitizens the statute expressly authorizes to work, and there are certain ones that it expressly prohibits from working,” he explained. “And it seems to me that for all others, 274(a)(H)(3) is the provision that says: for all other people, the person who’s in charge of the of implementing the immigration laws — the Secretary of Homeland Security — has the discretion to allow work.”

Refugee Rulings, Attorneys For Immigrant Kids & An Aggravated Felony Case

In June, a Texas federal court threw out a suit over the resettlement of Syrian refugees in the state, ruling that a Texas agency didn’t have a basis to enforce a consultation requirement of the Refugee Act. The ruling was yet another setback for states seeking to restrict refugee resettlement as another court had previously blocked Indiana from interfering with the resettlement of Syrian refugees in the state.

Another significant development in the humanitarian realm of immigration came when the Ninth Circuit handed a major setback to immigrant kids seeking attorneys. Specifically, the Ninth Circuit ruled that since the children’s claims over the right to an attorney stemmed from their deportation cases, they could only raise the claims through the “petition for review” process, which means going through the immigration court system first. Attorneys representing the immigrant children are seeking rehearing.

And finally, it’s also worth noting a May ruling from the Supreme Court in Torres v. Lynch, in which the Supreme Court ruled against George Luna, a Dominican immigrant who has been a green card holder for more than 30 years. The Supreme Court held that a state violation does, in fact, count as an aggravated felony when it contains every aspect of a federal crime except one element that requires a link to interstate commerce.

The case was somewhat technical, but it has has widespread implications for immigrants hoping to avoid removal, since being convicted of an aggravated felony has major consequences for deportation relief. And it also highlighted the complexity of the term “aggravated felony” itself, according to Yale-Loehr.

“I think that it shows that Congress needs to probably try to refine the definition, if possible,” he said.

Trump election portends major changes in immigration policy

Donald Trump made immigration restrictions a big part of his campaign platform.  Now that he has been elected president, here are some ways he might change immigration policy, based on statements he made during his campaign and on his website.

He has pledged:

  • to immediately reverse President Obama’s executive actions that protect millions of young immigrants from deportation.
  • to build a wall along the U.S.-Mexico border and increase the number of border patrol agents.
  • to increase the deportations of criminal noncitizens.
  • to detain more people who enter the United States illegally.
  • to ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports of entry.
  • to reduce legal immigration and to make sure that open jobs are offered to American workers first.
  • to suspend the issuance of visas from any country where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.

Whether President-elect Trump will actually follow through on these pledges remains to be seen.  Some actions, like reversing President Obama’s immigration executive actions, can be done unilaterally.  Others, like building a wall and strengthening border security, will require Congress to change current law or to agree to spend the billions of dollars such proposals will require.  Although Republicans will control both the House and Senate for the next two years, it is always difficult for Congress to enact significant immigration changes because immigration is so complex and controversial.

Voters elected Donald Trump as President partly because they demanded major changes in Washington, DC.  The federal government, however, is like a naval aircraft carrier: It is hard to change course quickly.  While President-elect Trump can make some immigration changes on his own, major changes will take time.  Moreover, some of his more controversial proposals, such as creating a new ideological test for admission to the United States that would assess an immigrant’s stances on issues like religious freedom, gender equality and gay rights, would surely provoke constitutional challenges in the courts.

President-elect Trump stated in his victory speech that he will be fair to everyone.  Let’s hope he keeps that promise to immigrants.