NEW YORK—President Donald Trump inherited an immigration system in disarray. The five previous administrations had been so lax on enforcement that generations of people who live here are technically illegal, yet many are as American as apple pie.
Immigration courts are so overwhelmed that thousands of hopeful immigrants are being allowed into the country and given a final court decision as far into the future as five years to determine if they can stay. So for five years, they build a life here.
Over the last 40 years, bills and acts and reforms have been stitched together to alleviate certain issues, but often remain words on paper, and sometimes cause secondary problems.
Trump’s recent executive actions on immigration are jarring for millions of Americans who are used to the United States having more porous borders.
But the executive orders include many of the actions Trump campaigned on and a large part of the reason he appealed to so many voters—enforcing existing immigration law, building a wall along the southern border, and stemming terrorism.
Halt on Refugee Intake
On Jan. 27, the intake of all refugees was banned for 120 days, and visas were blocked for 90 days for immigrants and nonimmigrants from seven countries while a review takes place by the State Department and the Department of Homeland Security (DHS).
The countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—were all identified in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which added new eligibility requirements for travel.
Refugees from those countries made up nearly 40 percent of the total refugee intake (69,920) in 2015, according to a DHS report. The largest chunk (12,676, or 18 percent of total refugees) came from Iraq, which is a substantial increase from the 198 refugees accepted from that country in 2005. Only 16 came in from Yemen in 2015, 1,682 from Syria, and no refugee numbers exist for Libya in the DHS report.
Refugees must apply for admission while outside the United States, whereas asylum seekers apply at a port of entry or at some point after their entry into the United States. Close to 1.8 million people were granted refugee or asylum status in the last 20 years.
“America is a proud nation of immigrants, and we will continue to show compassion to those fleeing oppression, but we will do so while protecting our own citizens and border,” Trump wrote in a Facebook post on Jan. 29 to explain his executive order on “extreme vetting.”
“To be clear, this is not a Muslim ban. … This is not about religion—this is about terror and keeping our country safe. There are over 40 different countries worldwide that are majority Muslim that are not affected by this order.”
Trump said he plans to reinstate the issuance of visas “once we are sure we have reviewed and implemented the most secure policies over the next 90 days.”
The rollout has created confusion at border entry points and sparked protests and several federal lawsuits. The administration has since permitted entry to green card holders from the seven countries.
Mark Krikorian, executive director of the Center for Immigration Studies, called Trump’s rollout of the order “slapdash” and said it could have been done better.
“But no matter what President Trump had done, there were going to be a lot of objections—simply because this is one more opportunity to protest Trump,” he said.
Sen. Chuck Schumer (D-N.Y.) said Senate Democrats will introduce legislation in an effort to overturn the orders.
Existing Law
The laws that are being enforced aren’t anything new, said John Khosravi, an immigration lawyer at JQK Law Firm in Los Angeles who has many Middle Eastern clients.
Trump is using part of the existing Immigration and Nationality Act that gives a president the broad authority to suspend entry:
“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Cinching Up the Border
In addition to the “extreme vetting” process for refugees and citizens from the seven countries identified, Trump intends to restrict access at the southern border. He has ordered agencies to “take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border.”
“The recent surge of illegal immigration at the southern border with Mexico has placed a significant strain on federal resources and overwhelmed agencies charged with border security and immigration enforcement, as well as the local communities into which many of the aliens are placed,” states the executive order signed on Jan. 25.
Trump also ordered a stop to the “catch and release” practice, which currently allows hopeful immigrants to remain in the country while they wait for a court decision—which can be years away.
Instead, Trump wants all immigrants who cross the border illegally to be detained until a decision is made to grant them entry or deport them.
His order gives John Kelly, the head of Homeland Security, the authorization to build detention facilities along the border, and assign immigration judges to conduct proceedings in those facilities.
But it’s unlikely the number of deportations can be substantially increased without increasing the number of judges, according to Judge Dana Leigh Marks, president of the National Association of Immigration Judges.
“The immigration courts have been dramatically under-resourced and overwhelmed by their workload for more than a decade,” Marks said. “Unless additional resources are allocated to the courts, nothing will change.”
The last year the courts were able to decrease their backlog was 2006.
Selective Enforcement
Krikorian, from the Center for Immigration Studies, said a fundamental issue is that the United States takes in too many immigrants.
Another problem, he said, is that the law is broadly ignored.
“The laws look tough, so Congress members can say that they’re serious about protecting American jobs and American security,” Krikorian said. “But then when push comes to shove, and an advocacy group like a business lobby complains about the law actually being enforced, it often ends up just not being enforced, or ignored, or administered in a way that weakens it or negates it.”
Previous administrations, whether Democrat or Republican, have not addressed these problems because there was a political benefit to the status quo.
“And at some point that wasn’t going to continue forever, there was going to be some backlash against that. And the form it has taken is Trump.”
Deportation From Inside the US
The number of undocumented immigrants in the United States is estimated to be around 11.5 million. This number has remained relatively consistent for the last 12 years, following dramatic increases that started in 1993.
Immigration and Customs Enforcement, the enforcement agency for DHS, removed 240,255 illegal immigrants in the 2016 financial year. Almost 73 percent were individuals apprehended at or near the border or ports of entry. Most people removed were from Mexico, Guatemala, Honduras, and El Salvador.
Lawyer Kerry Bretz, a partner at New York’s Bretz & Coven, LLC, said six of his firm’s lawyers appear in court up to 40 times a week for deportation cases.
A typical undocumented person is “struggling along, they’re working, their kids are at school,” he said.
But there aren’t many pathways to legality for undocumented immigrants, which is creating a lot of fear.
“People are scared. They don’t know if someone is going to knock on the door,” Bretz said. He warns against buying fake documents and suggests people learn their rights.
“You do not have to answer questions, don’t have to open your door unless they have a warrant,” he said.
Edina and her husband have lived and worked in the United States for 12 years, but they are undocumented. They arrived on tourist visas from Eastern Europe to visit Edina’s mother and haven’t left since. Their two sons, aged 6 and 8, are American citizens.
Edina has a cleaning job in residential buildings, while her husband works in the construction industry.
Obama’s now-defunct Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program allowed people like Edina and her husband to apply for a renewable work permit and meanwhile avoid deportation.
“There was hope for people like me,” Edina said. “It’s really not promising now.”
But she said she thinks undocumented people in New York are safe for now.
Sanctuary Cities
New York City Mayor Bill de Blasio has reiterated his commitment to keeping the city as a sanctuary city, despite threats of federal funding cuts.
“We are going to defend all of our people—regardless of where they come from and regardless of their documentation status,” he said at a live-streamed press conference on Jan. 25.
The mayor’s office estimates there are 500,000 undocumented immigrants living in the city.
Sanctuary cities (and states) have laws, policies, and practices that are lax on immigration enforcement and limit dealings between local law enforcement and federal immigration authorities.
The designation originated in Los Angeles in 1979. More cities created sanctuary policies after 9/11 when then-President George W. Bush introduced Section 287(g) to the Immigration and Nationality Act.
Section 287(g), an opt-in program, gives all law enforcement officers (including police) the same powers as immigration agents to investigate, apprehend, or detain suspected illegal immigrants.
Obama stopped enforcing Section 287(g) when he took office but expanded a 2002 Congressional mandate that allowed for fingerprints of those arrested by local law enforcement to be matched against federal criminal and immigration databases operated by the FBI and DHS respectively.
Many jurisdictions countered the program by establishing sanctuary policies.
Trump ordered a refocus on Section 287(g) in his Jan. 25 executive order and instructed the DHS Secretary to immediately enter into agreements with state governors and local officials.
De Blasio railed against the plan, saying it’s not needed in New York, which already cooperates with federal authorities by handing over criminals who have committed any of 170 crimes. In the last year, local authorities handed over two criminals to federal immigration authorities, according to the mayor’s office.
Fears Rise
Antonio (not his real name) is Mexican and came to the United States as a child with his parents. He married a U.S. citizen, Maria (not her real name), and now has a green card. His mother has a pathway to becoming legal because she is the main caregiver for her parents (who are both legal).
But Antonio’s father is undocumented, and they’re concerned he will be deported.
“No one wants their family to be broken up,” Maria said.
Now, with new enforcement measures being instituted, some people who are already permanent residents are quickening their steps to citizenship in case things are further restricted under Trump.
Rose, who didn’t want her real name to be used, despite being legal, is originally from Mexico. She had been putting off submitting her citizenship papers, but the election prompted her to get everything in order. She filed her submission in mid-December.
“I was told by an immigration official that I should get citizenship done before the next president because things were going to change,” she said.
Rose lives in New York with her husband and two sons, who are all citizens. She said she doesn’t want any surprises down the road—so much so that she traveled for almost two hours with her one-week-old baby to the federal building in Manhattan on Jan. 23 to honor her scheduled fingerprinting appointment. Now she is waiting for her final interview.
The DACA Question
Trump hasn’t specified what he will do with the Deferred Action for Childhood Arrivals (DACA) program that Obama signed in 2012. DACA allows qualified undocumented immigrants, who were brought to the United States before turning 16, to apply for work authorization and temporary protection against deportation—which has to be renewed every two years.
Mikhel was 15 when he arrived with his mother, a teacher who was recruited from Trinidad and Tobago. He is now 31 and is on the DACA program, but his authorization expires next year, and he is worried it won’t get renewed.
“When it comes to DACA kids, I don’t know. It’s scary,” he said. “The idea of getting deported—getting deported to where? This is my home.”
Mikhel said his family moved here because they were promised their status would get taken care of.
“We would never have uprooted our families otherwise,” he said.
Krikorian thinks the administration should use the 750,000 DACA children as a bargaining tool for other immigration changes.
For example, DACA recipients could be given green cards, and in exchange, the administration could implement the mandatory use of e-verify, an internet-based system that allows businesses to look up the eligibility of their employees to work in the United States.
