Let's be clear. These memos do NOT change the LAW. The president cannot change laws, nor can he change regulations without going through the normal rule making process under the Administrative Procedures Act. But, he can change policy and enforcement priorities. Every president has done this. What no president has done before is actually enforce every immigration law on the books to their fullest extent, because each understood the massive negative impact of most of these laws, without Congress actually fixing the legal immigration process. The vast majority of laws that Trump Deportation Force will strictly enforce were actually signed into law by President Bill Clinton. These laws were passed by the most anti-immigration Congress since the 1920s in 1996. This new "broken windows" approach to immigration enforcement will have deep and lasting negative impacts on families, businesses, investors, and our foreign relations.
Here are the 13 things you need to know to prepare for and survive through the Trump Era of Deportation Enforcement:
1. ICE will hire 10,000 new "officers and agents" and the "Border Patrol" will hire 5,000 new agents. This means that you will see a lot of new employees vigorously enforcing a law they do not fully comprehend or understand, other than through the basic training they receive for a few weeks a their "academy." This will result in people who should not otherwise be detained and/or arrested, being placed in ICE and local jails to "sort out" their immigration status. It will undoubtedly result in some US citizens caught up in ICE's and Border Patrol's dragnets. See our blog that describes the papers you should be carrying with you to prove your immigration/citizenship status.
2. DHS has "prioritized" for deportation basically everybody. Really. The memos speak in the language of the law, the Immigration and Nationality Act, and focuses on anyone who: commits a crime or is suspected of committing a crime (due process is gone), is involved or is suspected of being involved in terrorism (which they have been doing for years), any who commits "fraud or misrepresentation" (which is not what you think it is, it is what DHS thinks it is), works illegally, and even just being unlawfully present in the United States. If you are undocumented; if you have are legally here under a visa, but have even just possibly committed a "crime;" if you are a lawful permanent resident who has been convicted of a crime (not including a DUI), you are now in the cross hairs of ICE and the Border Patrol AND USCIS. We suggest following the details of family preparation put out by the Immigrant Legal Resource Center.
3. DHS has listed all those that its agents and officers will seek out to remove from the United States. These are (1) anyone convicted of ANY criminal offense (this is MUCH broader than the law allows currently); (2)anyone CHARGED with a criminal offense, but no yet resolved; (3) anyone who "COMMITS" acts which COULD be a criminal offense (in who's eyes?); (4) anyone who has ever lied or concealed information on ANY government form (including the Form I-9); (5) anyone who has "abused" any welfare or public benefits program; (6) anyone with a final order of removal (around 900,000 people, many of whom have been reporting to ICE regularly for years); and (7) anyone the ICE officer thinks should be deported (everyone they encounter). If you fall into any of these categories, you need to prepare yourself to fight against deportation in the immigration court process.
4. ICE will be expanding the quasi-dormant 287(g) program, which currently only has 32 participants around the US, to as many agencies that want to participate. This program essentially deputizes local law enforcement, at least to a certain level, to act as ICE agents. The catch is, these officers receive minimal training in immigration law. This is where it becomes essential that everyone understand their rights in any law enforcement situation, including when dealing with ICE. Everyone regardless of status, has very specific Constitutional rights. Practice these and be prepared to use them:
5. DACA continues as a program. That means that if you have DACA you can continue renewing your work permit. You can also apply for DACA for the first time if you have not done so yet, or if you become eligible. There are always risks in any government program, and we understand that Attorney General Sessions may move to declare the DACA program outside the President's authority to enact, or encourage states like Texas to sue in federal court to stop DACA (this has happened already and DACA was found to be within the president's authority). Our advice is simple. If you are going to take advantage of DACA, use it as a tool to try to secure other immigration. Some people have options. whether it is immigration through marriage, or school or work. You need to talk to an experienced immigration lawyer to see what your option are, if any.
- Inform your family members (even children), housemates, neighbors and co-workers, regardless of their immigration status, of their right to remain silent and all of these rights if ICE or the police comes to your home, neighborhood or workplace.
- You have the right to remain silent.
- You can refuse to speak to an ICE agent.
- Do not answer any questions, especially about your birth place, immigration status or how you entered the United States.
- Say that you want to remain silent until you speak with a lawyer.
- You have the right to demand a warrant before letting anyone into your home.
- Do not open your door to authorities without a warrant.
- You do not need to open the door unless an ICE agent shows you a warrant signed by a judge with your specific and correct name and address on it.
- If they say they have a warrant, do not open the door for them to show it to you, ask them to slip it under the door or through a window.
- You have the right to speak to a lawyer and the right to make a phone call.
- Make sure to carry the phone number for an immigration lawyer with you at all times.
- You have the right to refuse to sign anything before you talk to a lawyer.
- Do not sign anything, as that could eliminate your right to speak with a lawyer or have a hearing in front of an immigration judge. This may result in you being deported immediately without a hearing.
- You have the right to refuse to show any documents before speaking with a lawyer.
6. ICE has established the Victims of Immigration Crime Engagement Office (VOICE), which is supposed to let such victims know what is happening to the immigrant who committed a crime by which they were affected. The question here is whether this new office will assist immigrant victims of crime by securing U visas for them. Likely not, but the hypocrisy in not doing so is overwhelming. Of course, much of the information about an immigrant has in the past been protected by DHS's interpretation of the Privacy Act, but DHS has now lifted that protection, and will, apparently, make personal information about immigrants available.
7. The US immigration laws allow for the collection of fines and penalties from individual immigrants, for example, from those who do not depart under Voluntary Departure. These fines range from $1,000 to $5,000. More troubling is the vague statement in the memo which calls for the assessment and collection of fines from people who "facilitate their unlawful presence in the United States." Whether that refers to smugglers and coyotes, or to the pastor who provides food and financial assistance to a struggling family is unclear at this time. But if you work with immigrants, you should be aware that ICE now views you as a source of revenue.
8. ICE is going to enhance its reporting mechanisms and issue a weekly report about "sanctuary" cities, counties and states that release individuals that ICE had placed a request for a voluntary hold on. That list will include the home address and name of the individual released, along with their immigration and criminal history, if any. This is an attempt to shame jurisdictions into cooperation with ICE. It will not work in some jurisdictions, but will definitely work in others. If you are an immigrant, and you are detained by the police for any reason, but released without the police responding to the ICE detainer or hold, please know that your personal information will be publicly available. Many people will say that this could lead to vigilantism. Let us pray it does not.
9. CBP will now detain everyone they encounter who seeks relief under the asylum laws of the United States (that is not Mexican). They will do this under the provisions of what is called Section 235, the Expedited Removal law of the United States. This law allows CBP to detain anyone they suspect of intending to work in the US, or if they have lied to a CBP officer about their intent on entering to be summarily deported, with no hearing before a judge. The only exception are those who claim a fear of returning to their home country. It is very important that anyone who does NOT have an actual fear of returning not say that they do, because CBP will detain them for weeks until they can have a preliminary interview with an asylum officer. Release from CBP custody after a credible fear finding is more restricted than it has been in the past. This provision is designed to deter people from coming to the US to seek asylum, for concern that they will be detained during this process.
10. CBP and ICE will start expanding the Section 235 Expedited Removal to the interior of the United States. That means that if you are undocumented, and you cannot prove at the time you are detained that you have been present for more than two years in the United States, you will be removed without a hearing, in an expeditious manner, usually in a matter of days. If you are undocumented it is essential that you carry with you documents proving you have more than two years of presence in the United States; that will then give you a chance to fight your case in removal proceedings. Also please be aware that if you have more than 10 years in the United States, and you have children, parents, or a spouse who is a permanent resident or a citizen, you can fight to stay in the United States by seeking Cancellation of Removal in deportation proceedings. You need experienced immigration counsel to help with this, AND, you should prepare now when you can, rather than having your family run around looking for documents when you are detained.
11. If you are Mexican or Canadian, and you are detained coming into the United States, if you have a claim for relief, such as asylum or a waiver, you will no longer be allowed to await a decision on that claim in the United States. You will be returned to your home country immediately while your immigration case is processed in the immigration courts. This is something that Canadians have dealt with for the last 20 years, but will be new to Mexicans. It will be important, in order to fight your case, that you work with an experienced immigration lawyer.
12. Unaccompanied children at the border present a unique challenge to CBP and ICE. Going forward, any child who comes into the US to join one or both of their parents here, will no longer be considered an "unaccompanied minor" and will no longer be eligible for relief as a "Special immigrant juvenile." It is essential that if you have a case pending in this category that you immediately contact your lawyer to discuss your future options for relief.
13. Even more dramatic is that the change authorized in this memo to criminally charge the parents of a minor brought illegally to the United States, and to place those parents in deportation proceedings. By bringing your child to the United States, you face criminal prosecution and deportation yourself.
The bottom line is simple to understand. President Trump promised to enforce ALL of the immigration laws. And, he is doing so. For two decades the radical anti-immigration movement has screamed for this complete enforcement, they have lauded "self-deportation." They now have gotten their wish. What immigrants need to do is understand their rights and make the necessary plans understanding their options. Contact an experienced immigration lawyer today, like those at Kuck Immigration Partners, to understand what you can do to protect yourself, your family, and your business. You can send any questions you have to ckuck@Immigration.net, to protect your privacy.