Here’s Where Immigration Stands Today in Trump’s United States
With immigration matters figuring so prominently in the news, one might wonder, how did we get here? Many of us might think that things were always difficult, that legal entry always involved a formalized process, and that our own ancestors surely did things “the right way” after the formation of the sovereign United States of America.
There were no bars to U.S. immigration until 1875, when the first exclusionary law barred convicts and prostitutes from entry. In the decades that followed, exclusion grounds grew to bar “idiots,” lunatics, convicts, persons likely to become public charges, epileptics, insane persons, professional beggars, anarchists, paupers, polygamists, and those who committed crimes involving moral turpitude. Restrictions were placed on natives of the Asia-Pacific triangle, and quota systems established, based on concerns that people of certain origins and from certain countries would inundate the U.S.A. Grounds for exclusion have persisted, and expanded, and continue to vex those seeking to travel to the U.S.A. -- whether as a tourist, a foreign student, a temporary worker, the spouse of a U.S. citizen, a refugee, or any of the other statuses available under U.S. immigration laws.
The Immigration and Nationality Act, or “INA,” is the federal immigration statute. It is codified at Title 8 of the U.S. Code and has been evolving since its incarnation as the McCarren Walter Act in 1952. It is implemented by federal regulations, case law, agency policy memos, and other guidance, including some that are little known among the public.
The INA determines eligibility to travel to, and remain in, the U.S.A. Provisions of the INA make distinctions based on the time, place, and manner of a person’s arrival in the U.S.A., qualify only certain relationships for immigration, and otherwise restrict eligibility for immigration status and benefits.
Whether and how any person might be affected by the INA depends upon where they fall in the hierarchy of immigration status. At the top are U.S. citizens, defined by the 14th Amendment as follows:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
If you’re not a U.S. citizen, you are an “alien.” Since its inception in 1952, INA Section 101(a)(3) has provided that “The term ‘alien’ means any person not a citizen or national of the United States.” Status as an alien carries with it a hierarchy of benefits and risks.
Among “aliens” as a group, lawful permanent residents are the “legal immigrants,” the “green card” holders, with permission to live and work permanently in the U.S.A. The status does not expire, but it can be lost or violated, typically by a qualifying conviction or remaining too long outside the U.S.A.
In the middle are non-immigrants -- people granted temporary permission to enter and remain in the U.S.A. for a specific purpose and limited duration. Common examples are tourists, foreign students, and the many types of temporary workers such as H-1B, L-1A, E-2, etc.
At the bottom are the undocumented: the millions of people lacking legal immigration status. Among the undocumented, those who entered the U.S.A. without inspection (generally meaning, they never went through proper procedures at a U.S. port of entry), or those seeking entry to the U.S.A. without documents authorizing their admission, are typically the most vulnerable population.
Historically, federal legislation has been the impetus for significant changes in the administration of U.S. immigration laws. In the Trump Administration, Executive Orders, Actions, Proclamations, policy memos and reinterpretations of existing law by federal administrative agencies have become increasingly significant means by which the INA is implemented and applied.
For many people, the first dramatic example was the so-called Muslim ban, or travel ban, first imposed by Executive Order in late January 2017. Subsequent incarnations were issued in the months that followed, culminating in Presidential Proclamation 9645 on September 24, 2017. Each incarnation, including Proclamation 9645, was challenged in federal court.
For everyone who believed “he can’t do that,” INA §212(f), [8 U.S.C. §1182(f)], states: “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.”
In its June 26, 2018 decision in Trump v. Hawaii, the Supreme Court upheld Proclamation 9645, concluding that it was a lawful exercise of the broad discretion granted under INA §212(f). In doing so, the Court stated, “[b]y its terms, §1182(f) exudes deference to the President in every clause.”
A different approach was taken by the current Administration for those apprehended after entry along the U.S. – Mexico border. In a Memorandum for Federal Prosecutors Along the Southwest Border dated April 6, 2018, Attorney General Jeff Sessions directed each U.S. Attorney’s Office along the Southwest border to “adopt immediately a zero-tolerance policy for all offenses referred for prosecution under INA §275(a) [8 U.S.C. §1325(a)]. That statute provides that “any alien” who enters or attempts to enter the U.S.A. other than at a port of entry, who doesn’t go through the “inspection” process, or who willfully misrepresents, falsifies or conceals a material fact, shall be fined or imprisoned, or both. A first offense carries imprisonment of no more than six months; a subsequent offense no more than two years.
The prosecution policy dovetailed with a family separation policy reported last December as a possibility then under consideration by the Administration. A letter by 130 organizations, including the American Immigration Lawyers Association, in January 2018 failed to dissuade the Administration. On May 4, 2018, the U.S. Department of Homeland Security Secretary directed its officers to ensure that all adults deemed prosecutable under INA §275(a) [8 U.S.C. §1325(a)] are referred to the U.S. Department of Justice.
Taking parents into custody for federal prosecution meant that hundreds of children traveling with them suddenly became “unaccompanied minors,” and therefore subject to transfer into the custody of the U.S. Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR). The children, like the parents, became subject to removal (deportation) proceedings, which would take place separately under the circumstances. Accounts of parents confronted with prosecution or removal have described being presented with the option of being deported alone, or with their children, as leverage to withdraw asylum claims despite the risks of returning to countries with widespread, unrelenting violence. Government protests aside, many could not read or understand legal documents put before them and were misinformed or coerced into signing them.
Those seeking reunification faced numerous obstacles, including U.S. government agencies that could not account for the whereabouts, or even the identities, of all the children. Government denials notwithstanding, accounts of those detained include descriptions of spoiled food, drinking water that sickened them, frigid rooms, and filthy sanitary facilities. Images of chain-link “protective units” and an audio of a screaming toddler hastened broad pushback to the family separation policy.
On June 26, 2018 a federal judge ordered children under the age of five to be reunited with their parents within fourteen days, and older children within 30 days. Federal agencies and those opposing family separation continue to spar over whether the court-ordered deadlines were met, and whether the government’s policies were protecting or further traumatizing children whose young lives were already challenged by conditions in their home countries and an often perilous journey to the U.S.A.
Reaction to the separation policy led to Executive Order 13841 of June 20, 2018, which the Administration promoted as a family unification directive. In it, the President affirms a policy to “initiate proceedings to enforce” violations of INA §275(a) [8 U.S.C. §1325(a)]. The unification portion states that “[i]t is the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources,” “during the pendency of any criminal improper entry or immigration proceedings involving their members” (emphasis added). The trouble is, once a parent has been convicted under the “zero tolerance” policy, any sentence to a term of imprisonment will result in family separation. Likewise, once a separated parent is removed from the U.S.A. (by government order or an individual’s “agreement”), before or after any criminal prosecution, he or she will be precluded from returning under current law while the child remains here. The practical effect could mean some separations will be very long-term or even permanent.
Meanwhile, on June 11, 2018, the Attorney General published a precedent decision in a Board of Immigration Appeals case, Matter of A-B- (27 I&N Dec. 316 (A.G. 2018). In doing so, the Attorney General referred to himself a 2014 precedent in which the Board had granted asylum to a married Guatemalan woman who suffered abuse and was unable to leave her relationship, and overruled it “and any other Board precedent to the extent those other decisions are inconsistent with the legal conclusions” he set forth in Matter of A-B-. In his 30-page decision, the Attorney General took aim at refugee claims based on membership in a particular social group where the persecutor is a non-state actor and, in a sweeping statement that alters years of decision-making, wrote that, “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” The Attorney General’s position is counter to decades of administrative and federal case law, which has long held that a refugee claim may be established where persecution is inflicted by the government itself, or by a private actor the government is unable or unwilling to control.
The frequency of new policies, and the upending of established practice and precedent, by the Trump Administration make it more important than ever to engage competent immigration counsel to assess how these changes may impact you, your family, your employees or students.
Contact the Immigration Team at Whiteman Osterman & Hanna LLP, the region’s largest and most diverse immigration law practice, for assistance with all your U.S. immigration matters.