OPINION: Trump and Immigration: What to Expect

by Matthew Bray

It is no exaggeration to say that President-Elect Trump made immigration a centerpiece of his campaign, ever since the summer of 2015 when he launched it with his famous speech labeling Mexican immigrants drug dealers and rapists although some might be “good people.” He called for a total ban on Muslim immigration to the US, and applauded the Supreme Court’s ruling upholding the injunction on President Obama’s expanded DACA/DAPA program. But now that he’s been elected, what can we expect from President Trump on immigration beginning next week on January 20?

1) Expansion of Enforcement and Removal Operations

It is highly likely that Trump will make some show of force in the removal of immigrants with criminal convictions. He has spoken of the two to three million criminal immigrants that he intends to deport immediately. Trump is generally light on details, but assuming he is referring to moving forward with the removal of individuals already ordered deported for criminal convictions and whose appeals have been exhausted, that would be in line with the Obama administration’s own policy of prioritizing such immigrants for deportation (along with others believed to pose threats to public safety and national security).

If Trump intends to accelerate the removal processes of criminal immigrants before their appeals have been exhausted, or to deport unauthorized immigrants without hearings at all, that would represent a sea change and a major departure from the rights that immigrants enjoy under current law and practice, including basic notions of due process and fairness. (Trump’s promise to end “Sanctuary Cities” could also lead more of such immigrants into the hands of the Department of Homeland Security for removal proceedings, especially in cities that may not have the financial strength to withstand the loss of federal dollars for defying the administration.) Given Trump is expected to freeze hiring of federal workers, it is unclear how he could implement such changes even if they could survive constitutional challenges in courts, given the fact that there is already a massive and well-documented backlog in immigration courts nationwide.

2) Changes in Policy and Precedent under the Department of Justice

Given Trump’s nomination of Senator Jeff Sessions of Alabama to be attorney general, and assuming he is confirmed by the Senate, we can expect some major changes in how the immigration courts and the Board of Immigration Appeals (BIA) interpret the immigration laws. Sessions is well known for his anti-immigration views, and will have the power to hire and fire judges and members of the BIA (as Ashcroft famously did in 2003 under Bush).  Both the BIA and the attorney general have the power to issue precedent decisions, including on issues such as how criminal convictions affect immigration status, and how asylum law is interpreted. This is an expansive legal authority that will have a broad impact on cases pending nationwide.

3) Fewer Refugee Admissions and More Visa Denials at Consular Posts Abroad

Although Trump has backed away somewhat from his pledge to ban all Muslim immigration, it should be expected that there could be an increase in blanket denials of visitor and other visas from certain countries where there have been national security concerns, or where “adequate security screening mechanisms” don’t exist. There could also be an expansion of the already implemented restriction on use of the Visa Waiver Program for travelers who have visited certain countries where there have been national security concerns. Given Trump’s promise to end Syrian refugee admissions and to require “extreme vetting” for future refugee admissions, it is likely we will see a vast decrease in refugee resettlement programs—a staple of US immigration policy since after World War II.

4) Maybe No Wall, But Increased Border Security

Trump’s promise to build a permanent border wall may not be feasible in light of the expense and practical challenges involved (going through thousands of miles of private lands, native reservations, and protected natural areas). We can, however, expect an increased deployment of border security personnel to the Mexican border. Such an increase will not necessarily be reflected in the number of apprehensions, which has decreased in recent years with a decline in Mexican immigration. Still, the increase in the numbers of women and children coming from the Northern Triangle (Guatemala, El Salvador, and Honduras) seeking asylum means that the new Border Patrol effort will have to be coupled with even more federal dollars spent on detention bed space, which is already at capacity. It is unclear if Trump will simply turn these asylum seekers around (which could cause a major international feud with Mexico), or instead undertake the expense of detaining them pending removal (a practice certain to be challenged in court).

5) Possible Key Changes to Professional and Business Visas   

Trump’s statements on the H-1B visa program—a cornerstone of business immigration law—have been contradictory. As a businessman whose many companies have hired foreign workers for decades, he is surely aware of their value and the need for US companies to have access to foreign talent. He has decried the fact that foreign students educated at US universities are unable to remain in the US and contribute to the economy, and has committed support to improving ways for tech companies and others to retain such workers. On the other hand, he has surrounded himself with anti-immigrant partisans who have consistently called for the H-1B program’s abolition, calling it unfair competition for US workers and a way to depress wages.

Given his unclear stance, it is hard to know what to expect, and it is hard to see that there will be an increase in the number of H-1B visas allocated by Congress in the near future. Nonetheless, Trump’s deep and close business ties can be expected to continue to press him to address their specific needs for high-skilled workers, and it is possible that this will translate into policies and practices that support the needs of businesses for immigrant workers of all skill levels and education.

6) What Will Happen to the DREAMers?

As with the expanded DACA/DAPA programs, during his campaign Trump promised to end the DACA program, which has been used by some 700,000 of those brought to the US as children to get reprieves from deportation and temporary work permits since it was implemented in 2012. Since then, however, he has softened his stance, promising that he and the Republican-controlled Congress will come up with a solution that would make a lot of people “happy and proud.” And a bipartisan bill has been introduced in the Senate that would provide a “period of protected presence” and employment authorization to DACA-eligible individuals. It is unclear whether such a bill could pass the Republican-dominated House.

It is always a challenge to predict how a new administration will tackle tough issues like immigration, which has eluded comprehensive congressional reform for decades. And Trump is especially unpredictable, and often appears to relish in contradicting himself. In that way, while the signs point in a direction of more severe immigration restrictions and anti-immigrant policies, it is possible that once in office Trump will moderate his views and adopt pragmatic solutions to ongoing immigration-related problems. We have no choice but to wait and see.