Overview
A few months ago, it seemed unimaginable that Donald Trump had a chance of winning the U.S. presidency. Now he is the Republican candidate running against the weakened establishment Democratic candidate, Hillary Clinton. A federal indictment continues to loom over her head as the general election approaches. Proof of her weakness as a candidate is demonstrated that by the fact that Democratic contender Bernie Sanders, a liberal left-wing socialist from Vermont,, one of the smallest states, continues to push her to the wire. The futebol equivalent is Vila Nova (Serie C) beating Corinthians (Serie A) for the Serie A Championship.
Trump’s political platform and messaging is focused, “Make American Great Again.” One the central tenets of his political platform is conservative immigration reform. His messaging has become like the lyrics of a popular song, “We are going to build a Wall and Mexico is going to pay for it”. When something is repeated enough times, people start to believe it
The second line of the Trump immigration song is “We are going to deport the eleven million illegal immigrants, but with an open door to let the good ones come back in”
I have written enough articles at this point for readers to know that I am culturally schizophrenic with a great love for Latin music – Afro-Cuban aka Salsa and Brazilian. The title of this article Nao Deixe O Samba Morrer, is one of the great Sambas sung by Alcione, one of the great Samba singers. In this context of this article, the title can be understood to mean the end of the American Dream for the out-of-status immigrant. While this articles take a futuristic approach regarding future immigration law, it proposes immigration solutions that are viable today, but with an eye towards the short term future
A prior article of mine focused on the writing on the Wall and the growing conservative trend of public opinion regarding immigration policy in the United States. In my view, the typical American in light of Syrian refugee crisis prefers “Juan and Maria”, the only illegal immigrants that he personally knows versus the Syrian refugees that he considers potential terrorists. This article takes futuristic literary license of the potential immigration changes after the national elections with Donald Trump in the White House.
In the interim, the Supreme Court is set to rule in June 2016 on President Obama’s executive order regarding DAPA and DACA. Even a favorable decision might only provide a short lived benefit for those undocumented immigrants qualifying for DAPA and DACA benefits, in the event Donald Trump wins the election. This article outlines some of the possible legislative possibilities in the event Donald Trump wins the presidential election, and also proposes current steps to offset the weight of adverse changes for undocumented persons or others that are out of immigration status, aka visa overstays.
Expansion of the Legal Waiver for Provisional Unlawful Presence
Most of us have tried to imagine what is would look like if the federal government actually attempted to deport the so-called eleven million illegal immigrants in the country. Query: Does Greyhound actually have enough buses to do the job? The traffic jam might make Governor Christie’s Bridge-gate problem look tame.
As a matter of national policy, we like to know who is coming into our country. As a result, every visa requires consular processing and background check by the Department of State. For undocumented persons who came across the Mexican Border, they are lacking the consular process and background investigation that visa holders receive. The point is that the adjustment rules do not provide a broad opportunity to adjust status due to the absence of consular processing.
On April 2, 2012, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule to amend its regulations to allow certain immediate relatives of U.S. citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications. The rule which became immigration law on March 4, 2013, was designed to encourage immigrants to take steps to legalize their presence in the United States without the significant risk of time delay that U.S. citizens are separated from their undocumented immediate relatives who need to return their native countries for consular processing.
One of the limitations of the original legal waiver for unlawful presence was its limitation to U.S. citizens. Additionally, the legal waiver is only available for spouses and the undocumented children of U.S. citizens. The initial program did not extend waiver benefits to the undocumented parents of U.S. citizens and the program did not include legal permanent residents and relatives in preference categories. One November 20, 2014, Leon Rodriguez, the Director of USCIS, issued a memorandum to expand the waiver for provisional unlawful presence. The program was expanded to include all eligible class of relatives for who an immigrant is immediately available on June 22, 2015. This means that the parents of U.S. citizens could also be included in the process.
DHS has expanded the provisional waiver process by eliminating the current restriction that limits extreme hardship determinations only to aliens who can establish extreme hardship to U.S. citizen spouses or parents. Under the proposed rule, an applicant for a provisional waiver would be permitted to establish the eligibility requirement of showing extreme hardship to any qualifying relative (namely, U.S. citizen or lawful permanent resident spouses or parents). DHS proposed the expansion to the provisional waiver process in the interests of encouraging eligible aliens to complete the visa process abroad, promoting family unity, and improving administrative efficiency. This proposed expansion permits any alien seeking an immigrant visa who would be eligible to apply for a Form I-601 waiver of unlawful presence abroad to now apply for a provisional waiver before leaving the United States to attend his or her immigrant visa interview abroad.
In the post-Trump world of immigration reform, the program might be further enhanced by including all of the relatives mentioned in the four preference categories in family immigration. An estimated cost of the mass deportation of eleven is $300 billion. Logistically, the cost, and complexity of such a legislative endeavor might take years. The immigration courts have a 600-900 week backlog without adding another 11 million cases to the court docket. An expansion of the program would largely be a “paper drill” illegal immigrants that are approved leaving for consular processing when their waiver request has been approved by USCIS. Undocumented documents would have the benefit knowing that they would be able to adjust to permanent residency after they make a short trip home to their home country for consular processing.
In effect any permanent resident or U.S. citizen would be able to sponsor a relative that is an undocumented relative in the U.S. providing the relative falls within any of the family preference categories. Immediate relatives include the spouses, unmarried children under age 21 and parents of U.S. citizens. The first category includes the unmarried sons and daughters of a U.S. citizen over the age of 21. The second category (2A) includes the spouses and children under the age of 21 of legal permanent residents. Category 2B includes the unmarried sons and daughters of legal permanent residents. Category 3 includes the married sons and daughters of any age of a U.S. citizen. Category 4 includes the siblings of U.S. citizens when the U.S. citizens are over age 21.
Coordination with Other Legal Waivers
Certain undocumented individuals may have bigger legal problems than unlawful presence. A whole host of legal waivers exist for these immigration problems. Some of the waivers include waivers for certain categories of inadmissibility such as health-related grounds; immigration fraud and misrepresentation; and certain civil penalties. In many cases crimes of moral turpitude do not qualify for a waiver nor would we want them to. In the Post- Trump Presidency, these waivers could be filed at the same time. Normally waivers using Form 601 Application for Waiver of Grounds of Inadmissibility are filed when the applicant is outside of the U.S. Filing at the same time as the waiver for unlawful presence would expedite the timing for approval and would be a lot more efficient than a max exodus.
Rediscovering the Benefits of INA Sec 245(i)
Not everyone has the good fortune having a parent, sibling or child that is a U.S. citizen or legal permanent resident. Back in the day, some undocumented immigrants could adjust for permanent residency in spite of their long term illegal status.
INA Sec 245(i) is a provision in immigration law that offered undocumented immigrants the ability to adjust for permanent residency in spite of the fact that they had entered the United States without admission. The provision allowed someone who was physically present in the United States who had been in the U.S. on December 21, 2000; had an immigrant visa immediately available; had been the beneficiary of visa petition or application for labor certification filed on (approvable when filed) or before April 30, 2001 and the payment of $1,000 penalty.
My view is that a Trump-sponsored program might reactivate a program similar to INA Sec 245(i) allowing long-term undocumented persons that are not otherwise inadmissible to adjust to permanent residency. I believe that the program would focus on persons that have been in the country at least ten years (2006).
What Next?
One of the things to consider is the relevant merit of undocumented persons or visa overstays remaining in the shadows versus pursing an immigration benefit that might result in a Notice to Appear by federal government in order to initiate removal proceedings. Under the legal theory of You’re Damned If You Do, or Dammed if You Don’t, it is not business as usual. Certain remedies such as Prosecutorial Discretion and Cancellation of Removal for Non-Residents are only available in the event of removal process. The latter remedy known by many undocumented persons as The Ten Year Rule is a very difficult case to win largely because of the need to demonstrate “Exceptional and Extremely Unusual Hardship” to a U.S. citizen or legal permanent resident. The back log for these cases is approximately two years. Appeals of the result in BIA and federal court of appeals could add an additional two years.
In the face of removal, Prosecutorial Discretion is a more realistic and attainable result for undocumented immigrants versus Cancellation of Removal. Prosecutorial Discretion is a form of deferred action granted by DHS. The grant of deferred action by USCIS does not confer lawful immigration status or alter the person’s existing immigration status. In many cases, all that such a grant will do is provide a reprieve of indefinite duration from adverse action. For example, if ICE agrees not to place a client in removal proceedings, this does not give the individual any different status than that which she previously had.
Nevertheless, an individual with deferred action may apply for an Employment Authorization Document (EAD) if she can establish an economic necessity for employment. 8 C.F.R. § 274(a).12(c)(14). Thus, it can be a significant benefit to a person without other options for relief. DHS issued an enforcement memorandum on November 20, 2014, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,”
The memo established three priority categories for removal. Priority 1 threats represent threats to national security, border security, and public safety. Priority 2 related to misdemeanants and new immigration violators. The accumulation of three misdemeanors other than traffic violations would constitute Priority 2 status. Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014.
Traditional thinking within immigration practice has been not to place an undocumented client at risk for removal. However, in the current political environment, the ability to remain in the shadows from Immigration and Customs Enforcement (ICE) may be short-lived as immigration reform looms beyond the presidential election. Some attorneys have taken steps to attempt to place clients that would be good candidates for Prosecutorial Discretion, i.e. they are not Priority 1, Priority 2, or Priority 3, designees under the DHS guidelines, for Prosecutorial Discretion. In some cases, attorneys have filed frivolous applications for immigrations benefits such as asylum knowing that their clients would not be granted benefits, solely for the hope that ICE would issue a Notice to Appear (NTA) for immigration court commence deportation proceedings.
Summary
In my view the current political environment does not favor a “do nothing” approach for undocumented immigrants or visa overstays in view of a potential. The DHS memorandum regarding prosecutorial discretion favors long-term undocumented immigrants with family members that are U.S. citizens or legal residents with a clean legal and criminal record within the United States. Waiting for the immigration cards to be dealt after the presidential election may result in a bad hand of cards for the undocumented immigrants. Accessing remedies that are only available in the removal process may be the best consideration after determine the possibility of benefits through DACA and DAPA.
We should know the result by the end of June when the Supreme Court issues its decision. Fighting the tougher and most likely unwinnable fight in Cancellation of Removal is a poor second choice. Nevertheless, the prosecution of the case along with appeals could take another five years. In the interim other options through legislative change or availability for benefits through the normal Green Card process could emerge – the U.S. citizen child turns 21 or the client marries an America(o).
Nao deixe o Samba Morrer, is an ode to the immigrant in illegal status, to not let their American Dream die. The opportunities in the U.S. compared to the rest of Latin American (or World for that matter) remain unsurpassed. Seize the initiative to explore the options as the tide of immigration reform rolls in.
