Trump’s Mixed Messages on Immigration Policy Heighten Uncertainty, Anxiety 1/5/17 01/05/17 9:37:27 AM
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President-elect Donald Trump explains his immigration policy to crowds on the campaign trail.
Local Immigration Attorneys Weigh In
Trump’s Mixed Messages on Immigration
Policy Heighten Uncertainty, Anxiety
By Dennis Friend
The Daily Record
The Trump Administration and a GOP legislative majority in both the Senate and the House of Representatives could mean more restrictive immigration policies.
The consensus of a number of immigration attorneys in Omaha is that uncertainty prevails as Donald Trump’s inauguration approaches.
His campaign promised to take actions such as building a wall between the U.S. and Mexico, rounding up and deporting all illegal immigrants and either banning Muslim immigration or demanding Muslims register with the government.
“Seems he’s changing his mind every day,” Mark Curley, immigration attorney at Curley Immigration Law, said.
Although the incoming President has backed away from some anti-immigration promises, Curley said the prominence of Kris Kobach in the Trump inner circle is a reason for concern. Kobach was under consideration for Secretary of Homeland Security and may still be named as an Under Secretary or Deputy Secretary of Homeland Security.
Kobach’s immigration stance is well known. The Kansas Secretary of State has been a consistent supporter of a hard-line immigration stance. Kobach is a member of Trump’s transition team, advising on immigration policy. As Curley pointed out, Kobach had a hand in Arizona’s controversial SB1070 legislation and wrote Fremont, Nebraska’s restrictive illegal immigration ordinance. Curley said these are reasons for increasing concern among immigrants “and we can’t give them answers” at this juncture.
Charles Shane Ellison, legal director of Justice For Our Neighbors – Nebraska (JFON – NE), also has noted that “in the weeks following the election there has been a lot of shock among immigrants and their allies. They are frightened by what this means.”
Ross Pesek of Pesek Law, LLC said many anti-immigration pledges made during the campaign would in reality be difficult to fulfill, constrained by such things as finances, time and the Constitution.
“A lot of those promises are unlikely to happen quickly,” Pesek said. Others could be implemented more quickly by incoming Attorney General Jeff Sessions, another immigration hard-liner, “but I foresee a lot of difficulties for President-elect Trump to follow through, even with a Republican majority.”
Key points include deportation of all undocumented aliens and undocumented criminals, construction of a wall between the United States and Mexico and rescinding the Deferred Action for Childhood Arrivals (DACA).
“The devil’s in the details,” Ellison said.
Curley pointed out that “immigrants have due process rights.” Before deportation, they have to go in front of a judge, “and the court is so backlogged, one case can take three or four years.”
Amy Peck, a principal at Jackson Lewis, is the Co-Leader of the firm’s immigration practice group. “Our group has been studying this,” she said. Peck’s numbers show 11 million unauthorized immigrants in the country, two-thirds of whom have been in the United States for at least 10 years; five- to six-million of those are from Mexico; others are from India and China.
“About 30,000 live in Nebraska,” Peck said, working “in industries that would be crippled if the immigrants left.” The state’s agriculture, construction and hospitality industries are heavily reliant on newcomers to this country. “If you deport these people, Nebraska industries will be devastated and we do not have the people here to replace them.”
Pesek, like Curley, pointed out that due process is a right under the law and estimated “a single deportation case can take five to 10 years” from start to finish. Flooding the immigration courts with thousands of new cases will overwhelm the existing system of judges, courts and agencies, worsening an already-problematic bottleneck, Pesek said. Hiring and training new immigration agents, attorneys and judges to handle immigration law will take both time and money “and the administration will be constrained by financial resources.”
Curley estimated the mass-deportation strategy espoused by the President-elect would mean the government would “have to spend tons of money, millions and billions of dollars. It’s not feasible or realistic. The mass-deportation talk is for show. Trump supporters will be very disappointed when they can’t deport 11 million people,” the current estimate of the number of undocumented people in the U.S.
Ellison agreed that “the politics of mass deportation would make it unworkable,” citing due process, various levels of legal authority involved and, most importantly, rights accorded to all people in this country. Ellison warned: “The law is the law. Clearly, proposals will be challenged if they violate the law.”
Peck, too, was blunt: “There is no way Trump is going to be able to deport millions of people,” citing the staggering implications of adding 11 million court hearings to the already-swamped immigration system, including the economic effects and additional costs. “People who believe this will happen are naïve. The logistics and the expense will be prohibitive,” she said.
The next President, while hedging his original hard-line deportation threat, insists he will go after and deport the criminal element.
Curley, Peck and Pesek all pointed out that President Obama already has done just that through an approach that has earned him the nickname “The Deporter-in-Chief.” Criminal immigrant deportation is “exactly one of President Obama’s executive orders,” Pesek said. Although a small percentage of the immigrant populations are criminals, they already have jammed up the legal system. Curley thinks, since “Obama has focused on the criminals and gotten rid of criminals,” Trump may simply adopt that approach as his own.
Peck said, “Donald Trump’s strong words were ill-advised.” The current administration’s stated policy is deportations “for felons, not families.”
Ellison agreed that deporting 11 million people would require a dramatic increase in federal spending, since the current system has a capacity of 400,000 people a year.
“I agree that families should not be targeted, but I have zealously defended plenty of immigrants with convictions too,” Ellison added, “since many have rights to remain in the U.S.”
Dreamers and DACA
An immigration policy started in 2012 allows certain undocumented immigrants who entered the country as minors to receive deferred deportation status as well as eligibility for a work permit. Qualified individuals must have entered the United States before age 16 and before June 2007, be under age 31 as of June 15, 2012, and have not been convicted of a felony, significant misdemeanor or otherwise pose a threat to national security.
“My Dreamers are very worried,” Curley said. “[Trump] said on day one he would rescind all of Obama’s executive orders. Since the election, he has backtracked and said he would try to work something out.”
Pesek points out that Trump’s promise to “reverse all of Obama’s executive orders” on his first day in office contradicts promises to “work something out” regarding those executive orders. These are mutually exclusive stances and “you can’t do both,” Pesek said.
Peck added, “Who knows? He’s playing ‘Let’s make a deal.’ I’m not sure he believes everything he says.”
According to Curley, Trump could modify rather than rescind specific executive orders, but worries what would happen if DACA is undone. “There’s a report out that 750,000 people are in the program,” and ending it will have “a massive effect.” Peck added, “People across the country could lose permission to work. These are not criminals. They all have been fingerprinted and their backgrounds checked.”
Curley said many DACA participants work in areas like IT and public relations, and losing these workers would have “a major impact on the economy. [Trump] would not be creating jobs, he would be creating vacancies. We already have a labor shortage in this country. DACA rescission would be the worst decision he could make.”
A Border Wall
“A lot of people during the presidential campaign liked ‘Build the wall.’ It was sensational and struck a chord for people who don’t understand the ramifications. But what would it take? It’s hard to explain to people,” Curley said. “Most people don’t know how their daily lives are touched by immigration, and they don’t know what would happen if immigrants weren’t here.”
Pesek does not mince words: “The wall is dumb.”
Muslim Ban or Muslim Registration
A registration plan has existed since the Sept. 11, 2001 attacks, called NSEERS, or the National Security Entry-Exit Registration System. It requires registration of people from a list of countries deemed to be a threat to national security. Curley said NSEERS was ineffective and essentially was abandoned in 2003, although it remained on the books. “We have other, more sophisticated methods to track immigrants now,” Curley said
The Department of Homeland Security ended the NSEERS registration process and President Obama recently announced the program would be dismantled.
“If Trump wants a Muslim registry, he will have to go through the whole regulatory process again,” Curley said.
Peck summarized NSEERS as “one of the worst programs. It didn’t work. No bad guys were caught. It’s been tried and it has failed. What’s to be gained by attacking a religion? Any type of Muslim registration is likely to be challenged as a Constitutional violation.”
“It’s a difficult time to be an immigration attorney,” Pesek said, describing “a lot of people crying in our office, a lot of people extremely nervous” as a result of the election. “We don’t know what’s going to happen.”
Ellison agreed: “Where are we going? There is a lot of uncertainty.”
Peck said the President-elect is likely to discover, “the hard line is difficult to implement. I’m getting calls and emails from people and employees. I have Muslim clients who are watching very carefully. I think Trump will try to do big, splashy things that will get a lot of attention.”
“We’re all just holding our breath,” Curley said. “This is not the way to unite the country.”