DON’T PANIC! An Immigration Attorney’s Perspective on the Results of the 2016 Election

Like most of our community, we were shocked by the results of the 2016 election.  Since Donald Trump was announced as the new president on Tuesday night of this week, we have been receiving numerous questions from very concerned clients and friends who are scared of what Trump might be planning to do.  People are asking if they should starting packing up their suitcases and be ready to be deported, or if they should go into hiding.  I absolutely understand their pains and concerns.  However, my message to my clients and the immigration community alike is DON’T PANIC!  Let me explain why:

When considering how a Trump presidency could affect the immigrant community, it is wise to consider the following:

• Politicians say a lot of things to get elected. Just because a political candidate promises something does not mean it will happen.  In fact, politicians say A LOT of things to try and please voters that they either know will never happen, or are never able to actually accomplish.  For example, President George Bush, Sr. famously promised during his 1988 campaign that he would never raise taxes, but then later did so along with Congress.  Only a few years ago, Obama promised that insurance premiums would not go up under the Affordable Care Act, but they have increased dramatically for many Americans.  Donald Trump’s tough rhetoric on immigration law may have sounded scary, but most lawyers and professionals I know doubt he will ever be able to follow through on those promises.

• The government does not have the capacity to deport millions of people. Even if Trump were to try and implement all of his threats, the practical reality of carrying those out is a completely different problem.  It is important to understand that even if the government did want to deport you, they don’t just show up at your house and put you on a bus or a plane that same day.  The process requires many steps, including sending you a written notice and then scheduling a court date in the future.  Right now, those first hearings might be six months to a year later, and maybe even more, with the second hearing coming six to twelve months later.  The whole process might take up to two or three years, or maybe even more.

There are currently around 375,000 deportation cases open in the Immigration Courts.  Those cases are being handled by only 294 immigration judges, which equates to about 1,275 cases per judge.  That is an impossibly high number of cases for one judge to handle.  According to Judge Dana Leigh Marks, president of the National Association of Immigration Judges, our system really needs at least 500 active judges for the current amount of cases.  However, our federal budget only currently allows for 399 immigration judges.

With those facts in mind, consider this:  A few years ago, the United States experienced an influx of immigrants from Central America (estimates were around 80,000-90,000 women and children).  This amount of incoming immigrants caused a massive backlog in the immigration courts, and almost shut them down.  The Denver Immigration Court, for example, postponed all cases at that time until November 2019 to handle the incoming cases. Many of those delayed cases have since been rescheduled to 2017 or 2018, but that is still a three or four-year delay from when the cases were originally scheduled.  Also, this increase of 80,000-90,000 immigrants caused the White House to request $45 million from Congress just to pay the new judges that were needed.

In other words, an increase of only 80,000-90,000 immigration cases caused a four-year delay in several of the courts, and required the hiring of numerous new judges and a request for $45 million in new funds to pay for it all.  Can you imagine what it would be like if the federal government were to actually try and deport the estimated 12-15 million undocumented immigrants in this country?  If it takes 500 judges to effectively manage 375,000 cases, then it would take 16,000 judges to process 12,000,000 cases.  If $45 million was needed to pay for an increase in just 100 or so judges, then that means it would cost over $7 billion to hire 16,000 judges.  In addition, if 80,000 extra cases delayed the immigration system by 3-4 years, then 12,000,000 extra cases should delay the courts by around 600 years.  Those figures might be exaggerated or a bit distorted, but hopefully you understand my point.

• Any dramatic change in immigration laws or in the deportation process would likely take years to pass and be implemented. It is no secret that our immigration system is badly broken and in desperate need of a complete fix.  By complete fix, I mean that the entire system needs to be thrown out, and we need to start over.  It really is that bad.  But to get a comprehensive new immigration system passed through Congress, and then set up and implemented, would likely take years.

Since 2001, our immigration system has been run by the Department of Homeland Security, which is a massive government department of over 240,000 employees.  Even if Trump were to try and make massive changes to the immigration laws, our government system would require those laws to be proposed to Congress, debated many times, written and then re-written, and then pass Congressional votes before actually being placed on the President’s desk for his signature.  Once passed, the process of putting those laws in place with a Department of over 240,000 employees would be incredibly complicated and time-consuming.

• A Republican President does not necessarily mean that the government will be completely against immigrants. Political parties are very good at saying the right things to appeal to their constituent voters.  However, don’t always believe the hype.  Like I stated above, politicians will often say whatever it takes to get elected.

Democrats, for example, have consistently been the party trying to appeal to the immigrant community.  These efforts and outreach are obviously greatly appreciated.  However, during President Obama’s eight years in the White House, the government deported more than 2.5 million people, more than any other president in history.  In fact, according to an article published by ABC News on August 29, 2016, Obama’s administration deported more immigrants than all of the presidents in the 20^th century combined. (see http://abcnews.go.com/Politics/obamas-deportation-policy-numbers/story?id=41715661)

By contrast, Presidents Ronald Reagan and George Bush, Sr., both Republicans, issued executive orders and amnesties that protected millions of immigrants from deportation in the 1980s and 1990s.

This does not necessarily mean that President Obama has been out actively looking for people to deport, and that Republicans have consistently been on the side of immigrants.  But it does mean that you cannot necessarily predict what a presidential administration will do based only on which party is in office.

It is also extremely important to understand that our form of government was created to not allow a president to pass laws acting on his own.  With the exception of a few policy actions that a president can take, like DACA (Deferred Action for Childhood Arrivals) or TPS (Temporary Protected Status), a law must pass through both houses of Congress before being accepted and implemented.  That means that Trump cannot cause major changes to immigration law without it first being voted on by hundreds of members of Congress.  Even then the law can be challenged in federal courts, where it could be delayed for years.

However, I do have to explain that executive orders that were issued by President Obama, such as DACA or TPS, can be cancelled at any time by Donald Trump once he takes office on January 20, 2017.  Therefore, if someone needs to renew their DACA, they should do it immediately.  Also, if you or anyone you know might qualify for any other type of immigration benefit, it would probably be a good idea to speak with an immigration attorney as soon as possible to see what your rights are and if you should get started.

If you have any questions, please call us at (719) 633-3377.