Many immigrants, legal and illegal, are concerned following the most recent presidential elections which saw Donald J. Trump elected president. This is due to his outspoken attacks on immigrants and his plan to deport all 11 million of the illegal immigrants in the U.S. It is important that everyone be aware of what a president can and cannot do with regard to immigration law.
The president has discretion with regards to which aliens that are deemed inadmissible or removable should be deported. This is called prosecutorial discretion, but it should be noted that prosecutorial discretion does not grant an alien any immigration status. Rather, all it provides is relief from deportation. Past administrations, including President Obama’s, have created guidelines that are followed in deciding which types of immigrants should be deported from the United States. These guidelines are often found in Memorandums, such as those written by the Secretary of Homeland Security, currently Jeh Charles Johnson. Presidents can delegate these powers because as members of the executive branch, and as commanders-in-chief, the enforcement of immigration laws touches on the issue of national security.
A Trump presidency could change how prosecutorial discretion is applied to aliens. Before that can be analyzed, it is necessary to mention the Government’s current policy. As it stands, the guidelines allow Immigration and Customs Enforcement (ICE) to exercise prosecutorial discretion when certain positive factors about an illegal immigrant are met. There is no exhaustive list of these factors but they include whether the alien: is a veteran of the U.S. armed forces, has been a permanent U.S. resident for a long time, has been the victim of a serious crime, has serious mental or physical disabilities, is pregnant, or has been living in the U.S. since infancy. In addition, aliens who have relations to U.S. immigrants, have clean records, or regularly participate in their communities are less likely to be deported.
ICE will also review priority factors in an alien’s record and weigh these against the previously mentioned positive factors. Aliens who engage in terrorism or espionage, are convicted felons, or have convictions for aggravated felonies are the first priority for deportation. This means that they will be the first category of aliens to be deported. Those who committed misdemeanors, abused the visa or visa waiver program, and others, lie in the second priority. Lastly, the third, and lowest priority, includes aliens who have been issued a final order of removal.
What does a Trump presidency mean for those aliens who are seeking relief from deportation through prosecutorial discretion? What does it mean to the 11 million who are here illegally? First of all, if you are a legal immigrant in the U.S., and you have not committed any crimes nor violated any immigration laws, you have nothing to worry about. For everyone else, a Trump presidency could mean that deportation priorities will be eliminated and no alien that is found to be unauthorized is off limits for removal. We could see a return to the workplace and home raids of the Bush administration. However, there are possible constitutional challenges to this. For instance, it is questionable under the Fourteenth Amendment of the U.S. Constitution, whether the Government can round up every person that appears to be an immigrant in order look into their immigration history. This would probably violate the equal protections that all individuals subject to the jurisdiction of the U.S. and its territories are given by the Constitution.
It is also important to note that the Fifth Amendment gives all aliens within the jurisdiction of the U.S. (with some specific exceptions) the right to due process, including the right to a full and fair hearing. This means that, for the most part, immigrants cannot simply be rounded up and sent back to their country of origin. Also, under the Fourth Amendment, aliens have protections against unreasonable searches and seizures. Therefore, before simply rounding up and detaining every person that looks like a foreigner (which is probably already unconstitutional), the government would first need a search warrant or probable cause that illegal aliens are going to be found in a specific neighborhood or workplace.
Lastly, Trump’s proposal to use “extreme vetting” in determining whether Muslims or anyone from an Islamic country can be in the U.S. could be challenged under the First Amendment’s right to freedom of religion, especially if aliens are disqualified based on their religious belief systems. However, it is also true that vetting systems can be found to be constitutional if the questions asked of aliens involve issues of national security, such as whether they support Sharia Law and are willing to follow U.S. law, or whether they would be willing to uphold the U.S. Constitution.
In sum, it is possible that a Trump presidency could end prosecutorial discretion or at least adjust the priorities for deportation set out by the Obama presidency. However, aliens should remember that they have Constitutional rights such as the right to due process, equal protections under U.S. law, and freedom of religion. As a last note, people should keep in mind that the implementation of a deportation plan which would remove 11 million aliens will require congressional approval and would cost billions of dollars with the creation of new immigration courts and thousands of new jobs.