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How will ICE policy change under Donald Trump?

There were more deportations under the Obama administration than any other U.S. president. Could there be more during the Trump administration? If President Trump’s promises of mass deportations during his campaign are any indication, then that could be a possibility.

In the most recent study in 2012, the Department of Homeland Security (“DHS”) estimates that 11.4 million unauthorized immigrants were physically present in the United States.

While the Obama administration and Congress have authorized many forms of relief for immigrants to avoid deportation, it is unclear at this point whether Immigration and Customs Enforcement (“ICE”) under the Trump administration will offer any such relief.

We will have to wait until after January 20, 2017, to get the answers some of these questions. However, individuals should seek counsel now, because several factors indicate that ICE’s policy under the Trump administration will be less advantageous for legal permanent residents and undocumented aliens than the Obama administration.

Trump’s 10 Point Plan to Put America First

Donald Trump lists on his website, DonaldTrump.com, ten different policies to improve immigration:

  1. Begin working on an impenetrable physical wall on the southern border, on day one. He intends for Mexico to pay for the wall.
  2. End catch-and-release. Under a Trump administration, anyone who illegally crosses the border will be detained until they are removed out of our country.
  3. Move criminal aliens out day one, in joint operations with local, state, and federal law enforcement. We will terminate the Obama administration’s deadly, non-enforcement policies that allow thousands of criminal aliens to freely roam our streets.
  4. End sanctuary cities. This refers to cities that fail to cooperate with federal regulations related to detaining illegal immigrants.
  5. Immediately terminate President Obama’s two executive amnesties. All immigration laws will be enforced – we will triple the number of ICE agents. Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws and to have a country.
  6. Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.
  7. Ensure that other countries take their people back when we order them deported.
  8. Ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports.
  9. Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.
  10. Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.

Under existing immigration policy under the Obama Administration, ICE uses a number of factors to determine who to deport from the United States. On June 17, 2011, ICE Director, John Morton, issued a memorandum to ICE Field Office Directors, Special Agents in Charge, and Chief Counsels, to provide guidance to all ICE officials on the exercise of prosecutorial discretion. You can find a copy here: https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf

Donald Trump’s policies appear to provide for a “zero tolerance” policy to any person that has illegally entered the United States. He does not list any form of immigration relief for illegal immigrants that have United States citizen children, have any type of hardship, or are in fear of returning to their home country.

Some of his policies, are not practical or even enforceable. The Obama Administration prioritized the deportation of illegal immigrants, in part, because it is impossible to deport over 11 million illegal immigrants. ICE does not have the resources to arrest, detention centers don’t have the space to detain, and court’s don’t have the number of judge’s to handle the cases of such a massive amount of the population.

In addition, the United States does not have jurisdiction to require Mexico to pay for the wall or for other countries to accept individuals who are deported. While the United States can impose economic sanctions on these countries, Trump has basically made a promise that he can’t keep.

Even if he can’t keep all of his promises, however, it seems likely that Trump will want to at least take steps towards promoting some of these policies to appease his constituents. Otherwise, he won’t have a chance at reelection in four years.

Trump’s Appointment of Jeff Sessions as Attorney General

On November 18, 2016, Donald Trump announced his nomination of Jeff Sessions as Attorney General of the United States. Sessions is a Republican and a Senator from Alabama. He is the former Attorney General of Alabama and was the U.S. Attorney for the Southern District of Alabama for over a decade.

Trump’s appointment of Sessions as Attorney General is one of the best predictors for ICE’s future immigration policies. The Attorney General of the United States has broad discretion under the Immigration and Nationality Act to regulate and enforce immigration law.

Sessions was a controversial pick for Attorney General because of his conduct as a U.S. Attorney. During his time, Sessions allegedly referred to an African American attorney as “boy” and told him to “be careful what you say to white folks”. He has allegedly stated that he liked the KKK until he discovered they smoked pot.

Even without considering the racist allegations, Session is a hardline conservative who takes a tough stance against immigration considering the fact that:

  1. He supports Donald Trump’s plan to build a wall.
  2. He is against laws that provide a pathway to legal status or citizenship. He opposed the Comprehensive Immigration Reform Act of 2006, and 2007, and the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.
  3. He opposed federal funding for cities labeled as “sanctuary cities”.
  4. He supports a “zero tolerance” policy for illegal entries at the border including increased enforcement and mandatory minimum prison sentences in certain cases.
  5. He supports government services in English only.
  6. He opposes undocumented aliens contributing to and receiving social security.
  7. He has questioned the constitutionality of DACA.

Expectations for Future ICE policy

Donald Trump centered his presidential campaign around immigration reform. Jeff Sessions appears to be his enforcer. In 2017, legal permanent residents and undocumented aliens should expect an increase in enforcement against illegal immigration. This will more likely result in an increase in border agents, detention centers, and immigration judges.

DACA will more than likely be repealed. This will result in hundreds of thousands of immigrants losing legal status. Unless these individuals can petition for some other type of immigration status, they will become immediately deportable.

ICE has previously prioritized their removal enforcement of immigrants with serious criminal convictions. I would anticipate that this will still be the case. However, starting in 2017, I would expect ICE to initiate removal proceedings on immigrants with a minor offenses as well.

In addition to increased deportations, I would anticipate a decrease in immigration relief for Respondents in removal proceedings. This could occur from a Republican Congress changing, or eliminating, existing forms of relief and from ICE policy changes towards prosecutorial discretion.

It would be advisable for undocumented aliens, DACA participants, and legal permanent residents with criminal convictions to seek an attorney with experience in both immigration (link to immigration page) and criminal law (link to criminal page) in the near future to their legal status.

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