Post-Election Updates

For general information, read the flyer “What Trump’s Election Means for Your Immigration Status (English) or Lo que la Elección de Trump significa para su Estatus Migratorio (Spanish). Both documents provide information about Maryland service-providers who may be able to help.

The Immigrant Defense Project and the Center for Constitutional Rights have released: Defend Against ICE Raids and Community Arrests: A Toolkit to Prepare and Protect Our Communities.

MALDEF has also created excellent resources to answer questions, available bilingually here.

For information about your rights if ICE comes to your home, workplace, or elsewhere, Immigration Legal Resource Center – Red Cards provides valuable information in English and Spanish. The ACLU also offers a helpful card in Spanish here

For information on safety planning for your family, please see these resources prepared by our friends at the Michigan Immigrant Rights Center. There are many terrific resources here, but the safety planning ones are under “Know Your Rights/Family Preparedness.”

For people with DACA, here is an excellent resource:

Finally, stay safe from notarios:

And as organizations like CASA of Maryland schedule screenings and know-your-rights events, we will add that information–stay tuned!

PREPARING FOR POST-TRUMP IMMIGRATION ADVOCACY IN MARYLAND[1]

LAST UPDATED:  NOVEMBER 14, 2016

This is a brainstorming document:  The purpose of this document is to set forth initial ideas and suggestions for what a post-Trump advocacy response for immigrant communities might look like.  Communities should not panic.  But they need to prepare for the changes that lie ahead.  The new President does not take office until January 20, 2017 and current policies will remain in effect until then.

The election of Donald Trump, coupled with the election of a majority-led Congress, could give rise to dramatic and unprecedented changes in immigration law enforcement and policy.  Despite the many criticisms of President Obama’s immigration policies, particularly deportation rates, the Trump Administration is likely to institute major departures from current practice.  No one knows precisely what those changes will look like.  But Trump’s campaign promises, his post-campaign promise to immediately deport 2 to 3 million undocumented immigrants with criminal records, and his short list of government appointees (which includes Kris Kobach, architect of Arizona’s SB 1070; Senator Jeff Sessions (R-AL); and former Sheriff Joe Arpaio of Maricopa County, AZ) suggest that immigration enforcement will be cruel, will criminalize, and will not take account of humanitarian factors that might have influenced the outgoing Administration.

What are the specific changes that we can expect to see take place after January 20, 2017? Again, we don’t know.  At the end of the day, it is quite possible that under a Trump Administration, more people will find themselves in removal proceedings and in immigration detention, and that fewer people will be able to successfully apply to legalize their status or obtain relief.

DACA.  But it seems likely that Trump will quickly rescind DACA, and because DACA was created via executive action (not by Congress or through notice-and-comment rulemaking), most legal experts agree that DACA can be rescinded.  It is not clear whether DACA recipients whose personal information has now been shared with the federal government will face enforcement action.  For more information on DACA recipients, see the Immigrant Legal Resource Center’s Post-Election Talking Points.

TPS. Somewhat like DACA, Temporary Protected Status exists through executive designations of countries like El Salvador, Honduras, Syria, Nepal and many more. We have no indication that the new President will revoke any of these designations, or whether he will even let them expire, but it is important that people with TPS keep a close eye on reliable immigration news once the new Administration is in place.

Changes to Immigration Statutes and Regulations.  Some general legal principles and limitations apply to future Presidential action over immigration.  A new President cannot change laws enacted by statute, such as laws allowing persons to apply for U visas, asylum, or to defend against removal.  A new Congress can, however, enact new laws that are harsher than the laws currently in place.  A new President cannot immediately rescind regulations that have been issued through a regulatory process known as “notice-and-comment rulemaking” (such as the regulations providing for provisional waivers).  The new Administration can change or rescind such regulations, but the process can take months.  If the Administration fails to follow required processes, then such failure can lay the groundwork for a future lawsuit.

Changes to Immigration Policy, Interpretations of Existing Law, and Discretionary Decisions.  More importantly, the immigration laws currently reflect a number of practices that are not codified either in statute or regulation.  And the new President can direct the immigration agencies to adopt new interpretations of existing standards. These new interpretations could affect many aspects of immigration law, ranging from current policies related to prosecutorial discretion and enforcement priorities to when waivers for immigration applications are granted to when immigration agencies refer cases for enforcement.

Litigation in the Federal Courts.  In the courts, President-elect Trump will have the opportunity to appoint one new Supreme Court Justice in the immediate future.  He will not, however, be able to change the composition of the federal judiciary quickly.  Litigation in the federal courts may become increasingly important to ultimately vindicating the rights of immigrants.

What does this mean for advocacy in general?  The next four years will to require exceptional levels of advocacy to protect immigrants and families in Maryland and across the country.  Advocates and attorneys will need to push back on new practices, and prepare to protect those most at risk.  The current lack of information only works to the disadvantage of immigrant communities.   Below are some suggested advocacy strategies in the short-term:

  • Community Education, With a Focus on Know-Your-Rights and Safety Planning. Intensified community education and empowerment efforts can take place immediately. A number of community organizations already have infrastructures and relationships in place that enable them to hold community education forums.  The focus of these forums will likely require shifting to reflect an increased focus on (1) know-your-rights training and (2) safety planning in the event of immigration enforcement actions. To the extent that forums are accompanied by individual consultations by attorneys, those consultations should include individualized risk assessments (e.g., how likely the person may be at risk of enforcement action) as well as personalized safety planning conversations.  Organizations such as the Immigrant Legal Resource Center have created know-your-rights materials from the mid-/late-2000 immigration raids, but materials can be updated with local resources and current practices.  The range of partners for such community education efforts could increase as well, to increase collaboration with sites that are not regularly involved in immigration advocacy, such as churches or schools.
  • Safety Planning and Emergency Response Networks. Safety planning for community members and the creation of emergency response networks is a priority for Maryland. Emergency response teams could include social workers, churches, schools and lawyers.   Part of safety planning should involve community members receiving immigration consultations, developing a relationship with at least one trusted immigration attorney, and preparing bond packets or relief applications in advance of possible detention.
  • Changes in Immigration Law Practice. For immigration lawyers, applications for relief or to legalize status that were previously known to be successful may not be in the future, such as U visas for applicants with prior convictions or adjustment of status applications with waivers of inadmissibility.  Ultimately, each individual client who qualifies for relief will need to decide whether to move forward with relief applications.  The practice may become increasingly focused on removal defense.
  • Immigration Law Expertise in Removal and Detention. The need for immigration legal expertise in removal proceedings (including shadow removal proceedings such as reinstatement and administrative removal) and in detention centers will increase.  The new Administration may dramatically decrease funding for legal services and information at immigration detention facilities. The need for immigration lawyer referrals and pro bono or low-cost services will be critical, especially if funding cuts to existing non-profits takes place.
  • Training for Non-Immigration Lawyers and Law Students to Increase Capacity. Immigration attorneys and legal service providers may need to increase capacity by providing more extensive training for lawyers and law students who lack immigration expertise but are willing to help in efforts to provide individual consultations and take pro bono cases.  In Maryland we have many such organizations, including:

The Maryland Immigrant Rights Coalition is actively brainstorming and strategizing alongside colleagues at the national and local levels over how to resist new policies enacted by the Trump Administration.  We are committed to supporting organizations and individuals who want to protect immigrants in our state. www.marylandimmigrantrightscoalition.org.

[1] This document is based largely on the work of Professor Jennifer Koh, Director of the Immigration Clinic at Western State College of Law in California, and reflects Professor Koh’s personal beliefs (not those of the law school) and impressions. Professor Liz Keyes of the University of Baltimore School of Law has adapted the resource for Maryland purposes, with thanks and credit to Professor Koh.

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