With the election over and Donald Trump selected as the next U.S. President, immigrants and their families around the country are anxious about the policies a Trump administration will have on them and their families. Based on the questions our office is receiving, here is a practical look and some possible strategic approaches in the lead up to the start of four years of anti-immigration policy.
What will happen to the DACA (Deferred Action for Childhood Arrivals) program?
President elect Donald Trump has indicated that on day one of his presidency he will eliminate the Deferred Action for Childhood Arrivals (DACA) program implemented by President Obama by way of Executive Order on June 15, 2012.DACA allows certain people who came to the United States as children and who meet several guidelines to request consideration of deferred action for a period of two years, subject to renewal and they are eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time but it does not provide lawful status.
Executive Orders are legally binding orders given by the President.The DACA program was implemented by way of Executive Order and therefore it can be canceled via Executive Order.Although President Elect Trump has been inconsistent on many matters during his campaign and his transition into the role as President, he has consistently indicated that he will issue and an Executive Order to do away with the DACA program in his first days in office.Therefore, as of January 2017, it is very likely that the DACA program will be terminated.
What if I already have been granted DACA? Will I lose my status?
This is unclear.Constitutional due process requires that there be a hearing before an existing immigration benefit can be taken away.The new administration may try to strip current DACA beneficiaries of their benefits, however this will undoubtedly be met with much opposition.Injunctive legal action would likely ensue to prevent any attempt to deprive current DACA recipients of their benefits.If an injunction is sought and issued, then DACA recipients would be entitled to their continued benefits until the issue is resolved in the courts.
What if I am here without legal status?
President Elect Trump has indicated that during his administration he will remove 2-3 million undocumented immigrants from the United States, starting with those who have criminal convictions.The policy of seeking out non-U.S. citizens with criminal convictions for priority removal is not new.The Obama administration made for priority removal documented and undocumented immigrants that they deemed were threats to national and border security, and public safety.This includes individuals who are convicted of serious criminal offenses such as immigration law defined “aggravated felonies”, criminal felonies, or were suspected to have engaged in terrorist or gang activity. However, under the Trump administration is it possible that even those convicted of minor misdemeanor offenses or infractions may be subject to removal.
All other individuals who do not have encounters with law enforcement but are here with no legal status still may by targeted for removal by the Trump administration, but the extent to which this will happen is unclear at this time.It is highly recommended to seek out the advice of a qualified Immigration Attorney to determine if you may be eligible for any immigration remedies as the law stands now.
Once a person is in the United States, they are afforded certain rights of Due Process protection under the Constitution even if they do not have legal immigration status.If you are in the United States and have been picked-up by or transferred to Immigration & Customs Enforcement (ICE) you are entitled to have a hearing before an Immigration Judge to determine whether or not you should be deported.Contact a qualified Immigration Attorney immediately and DO NOT SIGN ANYTHING!
What if I have criminal convictions and I have a green card?
As noted above, the Trump administration has indicated that they will take a tough stance on non-U.S. citizens who have criminal convictions.The Immigration and Nationality Act already has in place certain consequences to lawful permanent residents who have criminal convictions.Any attempt to change this law and make it more stringent will have to go through the legislative process and will take time.As a lawful permanent resident (i.e. green card holder) you are entitled to certain due process protections under the U.S. Constitution and any attempt to remove you from the United States can only happen by review judicial review.In addition, if your convictions are old or of a certain nature you may be able to apply to become a United States citizen.You cannot be deported if you are a United States citizen.If you have your green card and have criminal convictions, please seek out the advice of a qualified Immigration Attorney.
What if I have a United States citizen or lawful permanent resident spouse or children who were born in the United States?
If you are an undocumented individual in the United States with a spouse who is a permanent resident or United States citizen, or have children born in the United States, they may be able to help you obtain status depending on the circumstances.The process by which this can be done is already in the laws as they exist.Any attempt to change this process will need to be done through the legislative process.Although the legislative process can take some time, the immigration legalization process is often lengthy as well.If you believe that you may eligible to legalize your status though a family member, consult a qualified immigration attorney immediately as see if you can benefit from the laws as they exist before they possibly become more difficult.
What if I’m here as a refugee or on a grant of asylum?
One of the most controversial positions of the Trump administration is the promise that those individuals who have fled persecution and are in the United States will be deported and sent back to their countries of origin, oftentimes the very place they have fled. As noted above, once an individual obtains lawful status in the United States, such as that as one who enters as a refugee and/or is granted asylum, it is very difficult to strip that status without judicial review. In addition, any attempt to strip an individual of their status will have to meet Constitutional scrutiny under due process.
If you believe that your status in the United States will be affacted by the incoming administration's policies, please contact a qualified Immigration Attorney immediately.
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