It’s Been a Wild First Week Under the Trump Administration

By: Robert Gard

 

I’m writing this at just 11 days into the Trump Administration with a caveat that things are changing (rarely for the better, in my opinion) so rapidly that points made in this article may be out-of-date, changed and supplanted with further information, or may simply no longer be the case by the time this article is published, and that this apparent chaos and mis-direction is viewed by the new Administration as a “feature”, and not a “bug.”

Just over one week into his Administration, the scope of Trump’s radical 20 executive orders (3 dealing with immigration issues, two issued on 1/25/2017 (dealing with building a wall on the US/Mexican border and denial of federal funds to “sanctuary cities”), and one issued on 1/27/2017 dealing with a travel ban on persons “from” seven named countries and a complete “temporary” halt to the entire refugee resettlement program) issued last week are staggering.

Just 11 days in, Trump already has created a “deportation force” and what appears to be a clear blueprint for mass removals, also using executive orders (even when he has a fully compliant Congress) to needlessly rush implementation of a cruel and disruptive travel ban and interruption of a wellfunctioning and fully vetted refugee program that has resulted in airport and international relations chaos and uncertainty, and damaged the U.S. reputation worldwide. There are drafts of four additional executive orders that have been“leaked” to the public.

One such draft order deals with terminating President Obama’s DACA (“Deferred Action for Childhood Arrivals”) Program. Another draft order appears to drastically alter and hobble the H-1B and L-1 programs as well as reversing President Obama’s recent expansion of the F-1 Optional Practical Training Program, and calling for review of other employment-based nonimmigrant and immigrant visa programs, though they have not yet been signed and put into effect. The third draft order calls for a review and limiting of government services that may be made available to nonimmigrants and immigrants, and monitoring use of government benefits used by immigrants (even if those benefits are for their U.S. citizen children) with a view toward removal of immigrants who rely on certain government services. The 4th draft executive order eliminates the DACA and the never implemented DAPA programs.

These four additional executive orders have not (as of 1/31/2017) been signed or implemented, and it’s not certain that they will be.

Initial discussion will involve the executive orders already signed on January 25th and 27th. The first, the “Border Security and Immigration Enforcement Improvement” is an attempt to fulfill his campaign pledge to build a wall at the southern border, to provide additional resources to Border Patrol agents, to curtail due process at the border, and to increase detention along the southern border, including for those who are seeking protection. It also encourages expanded collaboration with state and local law enforcement to act as immigration agents. Much of what is contained in this order would require vast amounts of funding and additional appropriations from Congress.

The second order, “Enhancing Public Safety in the Interior of the United States”, will ramp up interior enforcement by dramatically expanding the enforcement priorities to include anyone who committed an act that could be considered a crime, no matter how small. By effectively removing the requirement for a conviction and making simply being charged with ANY criminal violation (or admitting acts that would constitute a criminal violation, even if no charges were ever brought) the equivalent of a serious criminal conviction for targeted deportation/removal purposes, this greatly expands the class of “priority removals” (basically terminating any sort of “triage” system, making all grounds of removability/inadmissibility equal or high priority) to cover virtually anyone, and removes much of the element of prosecutorial discretion in the targeting of aliens for removal.

American Immigration Lawyers Association (AILA) Past President, David Leopold noted that Trump has thrown away any prioritization standard and put “parking tickets in the same category as murder.”

The order also targets those countries that refuse to accept their own citizens back after removal orders have been entered in the U.S., allowing the U.S. Department of State to completely freeze all nonimmigrant and immigrant visa issuance to citizens of those countries until they cooperate with U.S. removal orders. Immigration and Nationality Act (“INA”) Section 243(d) provides that upon being notified by the Secretary of Homeland Security that a government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the Secretary of Homeland Security notifies the Secretary of State that the country has accepted the alien.

The executive order requires DHS to fully implement and enforce this existing section of law. There appears to be about 23 countries that currently fit the definition of “recalcitrant countries”, and the Philippines is NOT on that list.

The order also includes a revival of the problematic Secure Communities program (which was ended under the Obama Administration), orders the Secretary of Homeland Security to consider stripping federal funding from so-called Sanctuary Cities, and encourages additional criminal prosecutions of immigrants for illegal entry.

To add pressure on “sanctuary cities,” the order calls for cutting off federal funds to those cities that don’t help enforce immigration laws, and for publishing a weekly list of alleged alien “crimes” in an attempt to shame “sanctuary cities.”

I’m in my 40th year practicing immigration law, and began practice when there were no Service Centers, all “INS” (before the separation into 3 agencies in 2001) adjudications were local, you could file your “green card” application at INS offices in Chicago at 7:30 in the morning and walk out approved for permanent residency by 10:00 a.m. that same day, and, for those I-485 green card applications that needed more time, employment authorization was automatic, but securing “Advance Parole” to travel and reenter the U.S. was on a case-bycase basis, where you had to prove hardship, or compelling humanitarian or business reasons to obtain Advance Parole.

Years ago, INS/USCIS started to require green card applicants to file an I-765 Application for Employment Authorization and an I-131 Application for Travel Document if they wanted to be able to work or travel abroad while their green card application was pending, and both applications were routinely approved after biometrics and background checks were completed.

One of Trump’s executive orders may change the way Advance Parole Applications are processed and adjudicated, halting routine approvals and requiring Advance Parole applicants to, once again, applicants to document and establish hardship or compelling humanitarian or business reasons for needing to travel on Advance Parole while their green card applications are pending before a grant of Advance Parole would be approved.

The order also appears to do away with the granting of Advance Parole entirely for any current beneficiaries of the DACA Program, meaning that if the DACA beneficiary leaves the U.S. for any reason or however briefly, he or she cannot come back.

There has not (yet) been any guidance provided by the Administration or DHS/USCIS on how this may be implemented, so I will likely need to re-visit this issue in later articles.

Another provision of the second executive order, “Enhancing Public Safety in the Interior of the United States,” will significantly alter the authorization for use of the “expedited removal” process, whereby inadmissible or removable aliens may be expeditiously removed without ever being taken before in immigration judge for a hearing. Currently, the expedited removal process is used to expeditiously remove inadmissible or removable aliens (other than returning permanent residents) if they are encountered at the border or at checkpoints or stops within 100 miles of the border.

This is being changed to allow the expedited removal process to be used when encountering any inadmissible or removable alien anywhere in the United States within two years after that individual’s entry into the United States. Accordingly, aliens should always carry not just proof of their lawful status (if any), but also proof that they have been physically present within the United States for at least two years.

Another little noticed provision in one of last week’s orders strips federal privacy protections from many nonimmigrants and immigrants, raising fears among many, particularly DACA applicants and benefits recipients, that information contained in their applications, though previously promised that such information (so long as it was truthful) would not be used against them, will now be usable by law enforcement and DHS against them in removal proceedings.

Trump’s move, in a wideranging order on immigration enforcement, marks a break from a policy dating to the administration of George W. Bush that had extended some Privacy Act protections to immigrants who are not U.S. citizens or permanent residents.

That included students, foreign workers, asylum seekers and undocumented people, such as those known as “dreamers” who were brought to the United States as children. There is a troubling historical precedent to the federal government collecting data for one purpose and then using it for another.

During World War II, Congress allowed the U.S. War Department access to sensitive census data, including names and addresses, as it rounded up Japanese Americans for relocation into camps.

The executive order signed on January 27th (the one that’s been causing turmoil at airports around the world) contains several provisions that affect anyone applying for nonimmigrant or immigrant visas, without regard to their country of birth, residence or citizenship. One such provision requires in-person interviews for most nonimmigrant visa applicants.

The order suspends the Visa Interview Waiver Program (VIWP), requiring all nonimmigrant visa applicants to attend an interview unless an interview is not required by statute. The VIWP allowed consular officers to waive the interview requirement for applicants seeking to renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification. Suspending the VIWP will place enormous burdens on U.S. consulates and embassies (particularly high-volume posts) by increasing already extended interview wait times and processing times, wasting limited resources, and decreasing the quality of consular interviews.

The VIWP has been used to waive the interview requirement only for travelers who have already been vetted and determined to be a low security risk and who have a demonstrated track record of stable employment and stable travel. Limited consular resources should be primarily devoted to high risk or new visa applicant cases where eligibility or security is a concern. Quick Notes:

I’m not forgetting Congressional activity and proposed legislation in this flood of immigration related changes coming out of Washington, D.C. That is a topic for discussion in future articles. Suffice to say, what I’ve seen so far is pretty unsettling, particularly as it relates to the H-1B and L-1 nonimmigrant programs. Stephen Miller, senior advisor to the Trump administration, has suggested that the USCIS should abolish the H-1B lottery as we know it and replace it with a system which favors those who file on behalf of prospective employees with the highest wages.