With the inauguration of President-elect Trump less than six weeks away, attention is centering on how the president-elect and his team will handle his immigration campaign promises, especially because immigration served as one of the campaign’s key cornerstones. But, not everything a presidential candidate says during an election campaign predicts how the candidate will act as president. This is particularly the case for Mr. Trump, who relied on general policy prescriptions without providing many details. Even in this post-election period and transition, relatively little is certain about what President-elect Trump’s immigration policies will, in fact, look like. Nevertheless, his Cabinet nominations may indicate how the new Administration will reshape immigration law, policy, and practice. Here is a summary of two key nominations. We follow with a summary of efforts currently in play to ameliorate what many expect to be a period of harsh and rigid immigration law enforcement.
Attorney General and Secretary of DHS
President-elect Trump’s plan to nominate Senator Jeff Sessions to be Attorney General (AG) gives one of the most ardent anti-illegal immigration voices in the Congress tremendous power to reshape immigration enforcement. Senator Sessions strenuously opposed bipartisan immigration reform bills that came before the Senate in 2007 and 2013, arguing that they were insufficiently strict and ultimately led to amnesty. As AG, Sessions is expected to take very restrictive interpretations of the current law that could limit the scope of relief available to individuals facing deportation proceedings and could revive the use of expedited removal authority. The attorney general also exercises control over the Executive Office for Immigration Review, administrative judges who adjudicate immigration court proceedings, appellate reviews, and administrative hearings. The AG also has authority over precedent decisions that bind immigration judges.
Trump’s plans to nominate retired Marine Gen. John F. Kelly as Secretary of Homeland Security adds another military officer to his Cabinet. Marine General Kelly is a respected military officer known as a blunt-spoken border-security advocate whose views on cross-border threats are aligned with Trump’s. The Department of Homeland Security is the third-largest Cabinet department, with more than 240,000 employees whose jobs include fighting terrorism and enforcing immigration laws. Kelly is not expected to face difficulty winning Senate confirmation. Apparently, Trump’s team was drawn to Kelly because of his Southwest border expertise. Like the President-elect, Kelly has sounded the alarm about drugs, terrorism and other cross-border threats that he sees as emanating from Mexico and Central and South America. He would be responsible for work to crackdown on illegal immigration, which would be overseen by DHS components, including ICE and CBP. Kelly would also be called on to help oversee Trump’s signature campaign promise: a wall along the U.S.-Mexico border.
Effort to Rescind NSEERS: Created in the wake of September 11, 2001, the National Security Entry-Exit Registration System (NSEERS) required immigrants from 25 Muslim-majority, Arab, and South Asian countries to register their presence, fingerprints, and photographs with local immigration offices or officers at U.S. ports of entry. It targeted people based on national origin, race, and religion rather than on specific intelligence information, and led to notorious ethnic profiling and civil rights violations. Ten years later, DHS announced the elimination of the list of countries whose nationals are subject to registration under NSEERS, thus effectively ending the NSEERS registration process. However, the program was not terminated. An effort is now underway urging President Obama to remove altogether the regulatory framework of NSEERS by rescinding the NSEERS regulation to ensure that this dark part of our nation’s history is not repeated.
BRIDGE and SAFE Acts – Relief for Dreamers
On December 9, a bipartisan group of Senators introduced a bill, “Bar Removal of Immigrants who Dream and Grow the Economy” or BRIDGE Act. The BRIDGE Act would provide DACA-eligible individuals the chance to apply for “provisional protected presence,” which is temporary protection from deportation similar to that provided by DACA. Employment authorization would be granted after recipients pay a fee and pass stringent background checks. The BRIDGE Act would offer protection to DREAMers for three years. After introducing the BRIDGE Act, Senator Flake introduced another bill, the Securing Active and Fair Enforcement (SAFE) Act, that also would extend DACA status for three years but in exchange for enhancing and expediting removal efforts for undocumented immigrants who have committed deportable crimes. Senator Flake has introduced this bill repeatedly. Most notable about the SAFE Act is the requirement that ICE hold – and not release – undocumented immigrants who have committed major crimes and see they are deported within 90 days.
Both bills are designed to protect immigrants who were brought to the United States as children and are eligible for President Obama’s Deferred Action for Childhood Arrivals (DACA) initiative and by doing so, protect the investment American communities have made in educating DREAMers. Some 750,000 DREAMers have come forward since the program was announced in 2012. Keeping DACA going is not only the right thing to do, it is smart business: studies have shown that revoking DACA would cost the economy more than $430 billion over 10 years.
In the meantime, USCIS has given assurances that it has not suspended the adjudication of applications for advance parole for DACA-based applicants, and that recent guidance has been given to USCIS field offices regarding emergency advance parole for DACA and other requestors. But, come January 20when Donald Trump is sworn in as President, DACA recipients are advised not to travel abroad. Advocates fear President Trump will immediately rescind the program and will bar DACA-recipients, even those with advance parole, from re-entering the United States. Meanwhile, businesses and local chambers of commerce are encouraged to get involved in the fight to save DACA given the potential loss to the economy if it ends.
Some 30 cities around the country have taken a stand to remain a sanctuary for immigrants, despite President-elect Trump’s plans to deport or jail 2 million to 3 million people who are in the country illegally.
We remind our readers that no change to policy can be effected before Mr. Trump takes office on January 20 and most changes to the immigration laws require congressional action, which take time. Nevertheless, there are some changes that as President, Mr. Trump can implement quickly through executive action or proclamation and the adjudications environment can change quickly.
We shall see.