Adapted from an article originally published for the Newark Star Ledger
We are on the eve of the swearing in of our new President Elect, and many immigrants in the United States are wondering what the next four years will have in store for them.
Trump’s campaign was filled with numerous infamous sound bites about “Mexican rapists” and “bad hombres” along with a promise to “build the wall” between the US and Mexico (and Canada), and threats of deportation for millions.
FIRST OF ALL I WOULD LIKE TO SAY: DON’T PANIC!
I have been hearing heightened anxiety from many of my clients since the electoral college vote came through, but I like to tell them this:
We have already been living through one of the most damaging immigration legislations in the modern era.
Twenty years ago when I was a young immigration lawyer just starting out, Bill Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act on Sept 30 1996. All of the veteran immigration attorneys who I spoke to at that time said it was the end of immigration law, and that were would be record-breaking mass deportations in our future. And they were right.
We have been suffering with the aftermath of that Act for the better part of two decades. Deportation cases in the Immigration Courts TRIPLED under the Obama administration; he is responsible for the deportation of millions of immigrants.
SO WHAT’S THE GOOD NEWS?
Even though a record number of immigrants have been deported in the last two decades, my colleagues and I have managed to help thousands remain in the country at the same time. No matter what kinds of rules Trump’s administration puts into place, there will be people out there to help.
A BRIEF HISTORY OF IMMIGRATION OVER THE PAST EIGHT YEARS
There has been so much hype about Trump’s words, but most people are unaware that the signature of William J. Clinton on The Illegal Immigration and Immigrant Responsibility Act, just over twenty years ago unleashed a new level of power and control over immigrants, and set the stage for the record breaking number of removals we have seen in the past decade.
Seasoned attorneys knew this legislation would be devastating, but the actual immigrant community had no idea. Nor did the American public. It took a while for the predictions to play out, but the mass removals did eventually occur, just not under Presidents Clinton or Bush.
Even after the tragic events of September 11 – which were swiftly followed by a Muslim Registration program known as NSEERS – the United States Immigration Court continued to move at a steady pace. In fact, under President George W. Bush, the peak number of deportation cases nationally pending before the Immigration Court never rose above 185,000.
However, with the inauguration of President Barack Obama, that number has virtually tripled, to nearly 522,000 in eight years. This profound increase occurred due to the work of an already existing “deportation force” (as opposed to a hypothetical entity once proposed by Mr. Trump on his campaign trail) known as Immigration and Customs Enforcement.
Even more striking is the well documented data that the current President has deported more people than any chief executive in the history of this nation. 2.5 million and counting, with particular emphasis on refugees, not from Syria, but Central America, especially young children.
In fact, Department of Homeland Security Secretary Jeh C. Johnson issued a public statement on January 4, 2016: “As I have said repeatedly, our borders are not open to illegal migration; if you come here illegally, we will send you back consistent with our laws and values.” Mr. Johnson specifically named Guatemala, Honduras, and El Salvador in his declaration.
SO WILL THERE BE A WALL?
Not likely a new barrier, but probably a fortification of the existing border. Building “the wall” between Mexico and the US (or Canada and the US) would be prohibitively expensive. Not just to build, but also upkeep. Congress will never fund that, and Mexico certainly won’t pay for it. Congressional leaders may agree to some moderate extension of the existing fence.
WILL MUSLIMS BE BANNED FROM ENTERING THE COUNTRY?
Will Muslims have to place their names in a registry? Well this has already happened in recent history. In the aftermath of 9.11, the Government created the Department of Homeland Security, and one of the first measures was the Special Registration Program. Nationals from 25 countries identified as presenting an elevated national security concern (mostly Muslim and males ages 16 and up) were registered and monitored.
In 2011 the program was suspended because the government determined that the program wasn’t very successful in terms of vetting (to use Trump’s word). This kind of program is nothing new. I think we can all agree that securing the homeland is very important, and we have had recent historical examples of programs like this already in place. But whether they are successful or not in terms of “vetting” is subject to controversy and debate.
WILL THERE BE MASS DEPORTATIONS?
Not based on the President-elect’s recent statements.
Even if some attempts to increase removals are effectuated, the Immigration Court will be overloaded even more than currently, which means many years of litigation for untold numbers of foreign nationals. It is impossible to deport 11 million people, as many politicians – including Chris Christie and Newt Gingrich – have said.
Notably Mr. Trump called these folks “terrific” on 60 Minutes.
SO WHAT WILL HAPPEN TO IMMIGRANTS UNDER PRESIDENT TRUMP?
President-Elect Trump is going to have to do something in order not to be accused of breaching his campaign promises, but I don’t think he will issue an order to explicitly ban Muslims by name. There is a provision in the statute which gives the president the power to ban any class of foreign nationals, whenever he finds them to be detrimental to the US – and it makes people afraid because that sounds like a very broad grant of power. But if the President were to try to do that on the basis of religion in particular, then a serious constitutional question would be raised. So rather than barring Muslims, what I can imagine is for immigration from certain countries there will be more security checks.
However as a practical matter, I don’t know what he could add to the many checks that are already in place.
THE MORE THINGS CHANGE…
The jury is still out. America may be paying attention to immigration as an issue now, but for those of us who have advocated for immigrants, we have already seen much damage inflicted on our clients by past and current Presidents, particularly over the last 20 years.
Why would someone like myself vote for a continuation of Obama’s aggressive immigration policies? I didn’t. Hillary Clinton didn’t get my ballot. But, neither did Donald Trump.
As a seasoned immigration lawyers we’re not afraid of what Trump says he’s going to do. It only matters what he does — and what we can do about it.
Harlan York, the first attorney in New Jersey to win “Immigration Lawyer of the Year” from Best Lawyers, is former immigration chair of the NJ State Bar Association and former co-chair for the NY State Bar Association CFLS Committee on Immigration. He also served on the American Immigration Lawyers Association National Practice Management Committee and authored the 2015 book, “Three Degrees of Law.”