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Looking Into a Crystal Ball: What Lies Ahead in the World of Immigration in a Trump Presidency

12.19.2016

While it is impossible to predict President-elect Trump’s immigration-related actions once he becomes President, it is possible to determine what his campaign promises were, how they have evolved and how they differ from current policy.

1. Build an "impenetrable physical wall on the southern border" on Mexico's dime.

President-elect Trump has since modified this stance, both in terms of being able to build the wall, and who will pay for it. There is already steel fencing along 100 – 155 miles of the US-Mexican border. The Head of the Border Patrol Agents’ Union, Brandon Judd, who is currently advising President-elect Trump’s transition team, said that the new wall could be another 200 miles long and only in strategic locations, since large portions of the border’s rugged terrain make crossing virtually impossible. Does Mexico need to pay for it? Not according to Kansas Secretary of State Kris Kobach, also working with the President-elect’s transition team. Kobach maintains that the Department of Homeland Security can rapidly construct the wall without Congressional approval by using existing funds in the current Department of Homeland Security (DHS) budget.

2. End "catch and release.”

President-elect Trump promises that if anyone is caught illegally crossing the border, that person will be detained and deported. His statement does not really change current policy. Between 2009 and 2015, the Obama administration removed more than 2.5 million people – more than the total of all deportations throughout the 20th century, earning him the soubriquet of “Deporter-in-Chief.” A few more facts: in 2015, 81% of those deported were previously convicted of a crime. Under President Obama, first priority removals are for threats to national security, border security and public safety, which include gang members, convicted felons and those charged with an "aggravated felony" as well as anyone apprehended at the border. Priority two removals currently include those aliens convicted of three or more misdemeanor offenses, other than minor traffic violations, as well as those convicted of domestic violence, sexual abuse, burglary, DUIs, drug trafficking, and trying to enter the country illegally. Priority three removals under President Obama are those who have arrived illegally since January 1, 2014.

3. Deport immigrants in the country illegally who have been convicted of crimes.

See 2 above. No difference from the Obama Administration.

4. End so-called sanctuary cities.

These are cities where local law enforcement officers are not required to alert federal authorities to the presence of illegal aliens in their area. Rep. John Culberson of Texas (R) is Chairman of the House Appropriations Committee. He has already notified the Department of Justice that unless state law enforcement complies with federal requests to deport criminal aliens, all federal money ear-marked for state law enforcement will stop. This includes money flowing into local police and sheriffs’ departments through the Community Oriented Policing Services grants and the Byrne-JAG grants. Regulations in place signify that if sanctuary cities refuse to comply, they must return funds provided over the past 10 years by these grant programs. Rep. Culberson said. “California will owe the US taxpayer a check for $1.2 billion and New York City will owe $211 million, and Rahm Emmanuel, get your checkbook out, you’re going to have to write America a check for $91.2 million…”

California’s legislature has a super-majority of Democrats and already has bills to fund lawyers for deportation representation as well as train public defenders to assess immigration consequences of criminal convictions. Further, State Senator Ricardo Lara has several proposals before the legislature called “Fight for California:” no wall without state approval and a prohibition on state agencies from providing information to the federal government relating to a person’s religious affiliation if used for a database solely based upon religious affiliation.

5. End Obama’s executive actions, Deferred Action for Childhood Arrivals (DACA with student registrants known as DREAMers) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and triple the number of U.S. Immigration and Customs Enforcement (ICE) agents.

While President-elect Trump has threatened to undo DACA and DAPA, there is a letter before President Obama asking the President to use his pardon power, at least for the DREAMers, i.e., DACA registrants, both retroactively and prospectively, before he leaves office.

Where the President-elect will wind up on this is anyone’s guess, but, read on. Donald Trump said, “…foreign students come over to our colleges, learn everything there is to learn about physics, finance, mathematics, and computers, and graduate with honors. They would love to stay in this country, but we don't allow them to. We immediately ship them back to their country to use all of the knowledge they learned at the best colleges in the United States back in their country rather than keep it here in ours. When we have gifted people in this country we should cherish them and let them stay." It would be logical that if this is his view of foreign students coming to the US, that those who have studied here all their lives vs. just for higher education, should also be allowed to stay.

Meanwhile, as of December 9, 2016, Senator Lindsey Graham and Senate Minority Whip Richard Dubin (IL) have introduced the Bridge Act, effectively extending and encoding DACA.

Turning to tripling the number of ICE agents, this statement has been interpreted to mean border agents. According to National Border Patrol Council (the officers’ union), the number of border patrol agents has doubled since 2002 to more than 21,000. The bipartisan immigration bill passed in 2013 expanded Border Patrol to 38,000, yet apprehensions have decreased by 72%, while deportations have grown exponentially. See 2 above.

If President-elect Trump is referring to ICE agents, there has been no increase for the past eight years in the Homeland Security Investigations (HIS) unit of ICE whose function it is to find and deport aliens working without authorization. ICE maintains this is because they can track illegal hiring through audits vs. raids. Senator Jeff Sessions (R.-AL) has been advising the President-elect and is of the opinion ICE needs to be overhauled before more funds are given. Currently, HSI agents only investigate “complex” cases, leaving “simple” ones to the FBI to refer to the US Attorney.

6. Suspend issuance of visas to people in places where "adequate screening” cannot occur, until “proven and effective vetting mechanisms can be put into place."

Kobach has not only supported the idea of creating a national registry for Muslims living in the U.S. but advocated for it on the grounds that the internment of Japanese in the US during the Second World War is a legitimizing precedent. However, such a seemingly outrageous idea is not without a more recent precedent. The National Security Entry-Exit Registration System (NSEERS) enacted post 9/11, was delisted by the Obama Administration in 2011. NSEERS required males 16 years or older from 25 countries to register with the Department of Homeland Security. But NSEERS was never formally eliminated, meaning that it could be revived under the next administration. Having said that, it was proven ineffective according to the Office of the Inspector General, costing more than $10 million annually without any known terrorism convictions. There is a letter dated December 1 to President Obama signed by 51 members of Congress to rescind the NSEERS framework that remains in place.

7. Make sure countries take back their own citizens when the United State orders them deported.

Daniel Ragsdale, ICE Deputy Director, indicates that the process for removing those ordered to leave the United States is affected by the range of cooperation offered by foreign nations. As of May 2016, ICE has listed 23 countries considered "recalcitrant" in taking back their citizens. The list includes Afghanistan, Algeria, China, Cuba, Iraq, Libya, Somalia and Zimbabwe. This classification was determined by a country’s cooperation with the deportation process, factors that include refusing to grant flights back into the country, the country's political environment, and the timeliness of granting travel documents.

How can the US retaliate? Based on the Immigration and Nationality Act, the Secretary of State is required to stop giving visas to immigrants or non-immigrants after being notified the country is hindering the accepting of one of its citizens. Yet according to Senator Grassley and the New York Times, that’s only happened once – in 2001  against the nation of Guyana.

8. Fully implement a biometric entry-exit visa tracking system at all land, air and sea ports.

Lack of such a system was exploited by the terrorists on 9/11, all “overstays” on student visas. This was the indictment and subsequent recommendation for an exit visa tracking system by the independent, bi-partisan 9/11 Commission in 2004, already signed into law in the Illegal Immigration Reform and Immigration Responsibility Act by President Clinton in 1996, but never implemented. In fact, since 1996, Congress has passed seven laws requiring biometric entry-exit screening. An estimated 40 to 50% of those present, or 4.5 to 6 million people, entered the US legally but have failed to leave when required. The Center for Immigration Studies estimated in 2013 that the cost of implementing a biometric exit screening at all air and sea ports would cost between $400 and $500 million, covered by fees added to visa applications.

9. "Turn off the jobs and benefits magnet" that attract immigrants coming to the United States illegally.

The evidence is clear: President-elect Trump encountered this situation in his own businesses. Currently, use of E-Verify is mandatory in certain states, including North Carolina, or if an employer enters into a contract with a federal governmental agency. A deterrent to illegal hiring will be making E-Verify mandatory for all employers, something already planned but not yet implemented, and raising fines for hiring illegal workers even higher. Just a guess.

10. Reform legal immigration and keep it "within historic norms," to serve the best interests of America and its workers.

President-elect Trump, while still a candidate, stated he wanted to keep immigration below the historic high of 14.5 percent in the 1890’s. Foreign-born population is projected to reach 18% in 2065. This would necessitate a reduction in immigration generally, most likely achieved by slowing down the process or reducing resources to the federal agencies handling immigration. Right now, green cards issued in the US prioritize family reunification over employment-based preferences and this might also change to reduce the number of immigrants.

10 ½. Major General John Kelly has just been named by President-Elect Trump as head of the 270,000 person Department of Homeland Security.

What is his stance? In his own words, General Kelly has said, “U.S. troops respect and even fight for the right of your neighbor to venerate any God he or she [expletive deleted] well pleases.” He has also stressed the importance of enforcing human rights, and told Latin American military commanders that they revert to the past when they overthrow civilian leaders with whom they disagree. Having said that, General Kelly is strong on border security, building the “wall,” not closing Guantanamo Bay, and fighting terrorism. He perceives the US-Mexican border as a national threat due to drugs and terrorism.

Conclusion

Just as polls, pundits and the media were incorrect in predicting President-elect Trump’s win over Hilary Clinton, the 10 statements above could be inaccurate as well. Only time will tell if these proposed measures in the world of immigration will be retracted, ignored, modified or implemented.

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