President Trump’s Immigration Orders: Some Preliminary Thoughts

by Jason Dzubow on January 27, 2017

During the first week of his Administration, President Trump has signed two “executive orders” on immigration: Border Security and Immigration Enforcement Improvements and Enhancing Public Safety in the Interior of the United States. At least one other order has been leaked to the press: Protecting the Nation from Terrorist Attacks by Foreign Nationals.

This is how it looks when America compromises its values.

The effects of these orders are already being felt. I have heard reports about Syrians with U.S. visas being rejected from a flight because the airline believed that the visa would not be honored and it (the airline) would face liability for bringing the family to our country. My Sudanese client–and a lawful permanent resident based on asylum–was on a business trip to a third country. When she called the U.S. embassy for advice, they told her to return to the United States immediately, as they were unsure how the vaguely-worded executive orders would affect her. A lawyer friend’s client who had been released on bond after passing a credible fear interview was detained, even though he has a pending court date for asylum (though apparently, he also has a pending–and minor–criminal issue, and this may be why he was targeted). The practice of prosecutorial discretion–closing certain cases where the alien has no criminal issues and has equities in the United States–has been ended nationwide, and so now DHS (the prosecutors) can no longer close cases for aliens who are not enforcement priorities. These are some stories from Day 1 of the executive orders.

Here, I want to make some preliminary observations. There will be time for a detailed analysis later, when we know more about how the executive orders will be implemented, but for now, there are some points that non-citizens should keep in mind:

  • Don’t panic. The President has the power to issue executive orders (“EOs”), but he is constrained by the law and by the availability of resources to enforce the law, and so there are limits to what he can do. The asylum system and the Immigration Courts still exist, and while pushing more people into the system may cause further delays, at this stage we really do not know what the effect will be.
  • For people physically present in the United States, the government does NOT have the power to deport anyone without due process of law, meaning a court hearing and an appeal. So you can’t just be thrown out of the country. Even an expedited process usually takes months.
  • Also, there is nothing in the EOs indicating people legally present in the U.S. will be targeted for removal, so aliens with asylum or green cards should be fine, as long as they do not commit (or get accused of committing–see below) any crimes.
  • For people with pending asylum cases, it does not seem that the EOs will have any immediate effect. The orders seem to impose some additional requirements on obtaining immigration benefits (and this may or may not include asylum), but these requirements are very similar to existing discretionary requirements, and I doubt we will see much difference. Asylum applicants from “countries of particular concern” (meaning Iraq, Syria, Sudan, Iran, Somalia, Yemen, and Libya, and maybe other Muslim-majority countries) may face extra delays because the EO’s seem to temporarily suspend immigration benefits for people from those nations.
  • It is probably best to avoid travel outside the U.S. using Advance Parole, at least until we have a better idea about what is happening. If you do need to travel, talk to a lawyer first to be sure that you will not have trouble returning.
  • If you are from Iraq, Syria, Sudan, Iran, Somalia, Yemen or Libya, it is probably best to avoid all travel outside the United States, even if you have a green card. The situation for people from these countries is unclear, but this seems to be the list (so far) of countries targeted for “extreme vetting.” Since we don’t really know what that means, it is safest to stay in the United States until we have some clarity. If you must travel, talk to a lawyer before you go. If you are from one of these countries and are currently outside the United States, but have lawful status here, it is probably safest to return to the U.S. immediately. Or at least call the U.S. embassy to ask for their advice (though they cannot always be trusted to give the correct advice).
  • If you have a criminal conviction, or even a pending criminal charge, you should be aware that an EO directs the government to make your detention and removal a priority (the idea that people accused of a crime, but not yet convicted, should face an immigration penalty is very troubling). Other priorities include aliens who have engaged in fraud, abused public benefits, or who have a final order of removal (the full list of enforcement priorities is here). However, the government is restricted in its ability to detain and remove people due to limited prison space (though the EOs express an intention to increase detention capacity) and due process of law.

In many ways, these EOs do not immediately change much of what has been policy for the last eight years. The tone is certainly different, which is an important and distressing change, but the laws are the same. For this reason, it is important to remain calm about the changes. For most people inside the U.S., especially people who are not enforcement priorities, the legal landscape today is not much different than it was prior to January 20.

The more damaging affects of the EOs, at least in the short term, is on people who are outside the U.S. waiting to come in, such as Syrian and other refugees whose cases now face a 120-day hold (and what happens at the end of 120 days is anyone’s guess). The EOs also temporarily suspend issuance of visas for immigrants and non-immigrants from “countries of particular concern.” The vague language used in the EOs makes them even more problematic, as it is impossible to predict how they will be implemented.

The longer-term effects of the EOs also look bad: Increased enforcement and detention, coercion of local authorities to end “sanctuary” jurisdictions, additional requirements for people to immigrate to the U.S., restrictions on travel for people from countries that do not (or cannot) supply “information needed for adjudications” of visas to the U.S. government, the border wall. Not to mention the overall tone of the EOs, which paints foreigners as a dangerous threat to our national security.

So here we are. One week into the Trump Administration, and the government is moving to restrict immigration and step up enforcement. To anyone watching Mr. Trump over the last several months, none of this should come as a surprise. There will be time later to analyze the policy effects of Mr. Trump’s actions (spoiler alert: They are terribly damaging to our national interests and our country’s character), but for now, the flurry of activity counsels caution. Over the coming months, we will see how the EOs are implemented, and we will have a better idea about what to expect. For now, though, it seems the large majority of non-citizens in the U.S. will not be affected by the EOs. So keep an eye on the news, and speak to a lawyer before traveling or if your case is an enforcement priority (if you cannot afford a lawyer, you might look for a free attorney here). We shall see how things go, and of course, we will keep supporting each other in these difficult times.

{ 37 comments… read them below or add one }

Luiz April 28, 2017 at 3:48 pm

Hi, Jason…. How are you? I’ll have my interview for AOS on may 23th. I’m married with American Citizen. When I applied for AOS last september, I did my own criminal background check and found out that my criminal charge still pending for more than 11 years.. my lawyer is trying to solve this case for 10 months. Do you think I’ll have problem during the interview? On I-485 I responded “yes” about criminal charges. I will have some risk of being detained during the interview? I really appreciate your opinion, thank. Luiz

Reply

Jason Dzubow April 30, 2017 at 10:16 am

I think the risk of detention is not that high and I have not heard about that happening (with one possible exception), but I suppose it is possible. Even if you are detained, you can continue your asylum case in immigration court, but obviously that is not ideal. I think you should bring whatever documentation you have about the arrest and criminal case, in case the asylum officer asks for it (and I think the officer will ask for it). Good luck, Jason

Reply

Faith April 17, 2017 at 5:07 pm

Hi Jason! I am on a pending asylum case, have gone for my biometrics. Am i free to travel within U.S?

Reply

Jason Dzubow April 17, 2017 at 6:39 pm

You should be able to travel. You probably need some valid ID, like a passport, and if you want to be extra-sure, contact the airline to ask. But we have had many clients in your situation travel and I have not heard about problems. Take care, Jason

Reply

Faith April 17, 2017 at 5:01 pm

Hi Jason! I have a pending asylum case, am I free to travel within u.s? But my visiting visa has expired.

Reply

Jason Dzubow April 17, 2017 at 6:38 pm

You should be able to travel. You probably need some valid ID, like a passport, and if you want to be extra-sure, contact the airline to ask. But we have had many clients in your situation travel and I have not heard about problems. Take care, Jason

Reply

Jay April 1, 2017 at 4:16 pm

Hi ,

My assylum is still pending in immigration court and I had my court date few months ago . They found out that I was convicted for a dui ( misdemeanor) year ago and asked me to bring details about the conviction. I have the next court next September. Im concerned that I may detained and deported prior to the court date . What are my options to stay in the country? Thank you

Reply

Jason Dzubow April 4, 2017 at 6:19 am

I doubt you would be detained prior to the court date. Just keep a copy of the court order with your next court date with you, so if you are stopped, you can show it to the officer; that should (hopefully) protect you from being detained. Whether the DUI will affect the decision in your case, I do not know, but you should talk about it with a lawyer. You may need to get some evidence of your good moral character or your rehabilitation (such as taking classes or attending AA) to counter-balance the negative effect of the DUI on your case. Take care, Jason

Reply

Lillian Gichuru March 29, 2017 at 6:51 pm

Hi Jason…
Am a kenyan citizen with 2 American citizen kids 10 and 3,I was granted PD Dec 3rd 2014..on asylum case.
My question is if just applied to renew my Work permit are they still renewing and what is PD status with the new administration??
Can I ever get Advance patrolled?
Can I ever change my status or do I have to wait for my kids to turn 21.

Reply

Jason Dzubow March 30, 2017 at 6:26 am

As far as I know, people with PD still have it, but that could change. You should be able to renew your EAD as before. I do not think you can get Advance Parole, but I am not 100% sure about that. You may want to consult with a lawyer to ask. If you have a US citizen child who turns 21, he or she can then file for you to get a green card, but whether you qualify for a GC, I do not know. You may have other paths – for example, continue the asylum case, but you would need to go over all the options with a lawyer. Take care, Jason

Reply

Abby March 20, 2017 at 10:11 pm

Hello Jason
I am in asylum seekers living in Florida.I submitted my application two years ago I expect my interview this year. I am wondering of hiring a lawyer before my interview. But why are most of applicants are approved at the court ? I left my family back home where they also face danger, I was wondering to apply for advanced parole however they state that there no guarantee to reenter even with AP , why wouldn’t allow me to reenter with AP, I ll meet my wife and kids in third country!
what could happen if my family apply for visitor visa and they don’t states that I am a relative to them ,a friend did it and his wife came,at the interview she didn’t states hubby being asylum seeker and visa office gave her a visa.
Thank

Reply

Jason Dzubow March 21, 2017 at 3:48 pm

A lawyer can help with the case, but the most important things the lawyer does is prepare the documents and affidavit and practice with you before the interview. The least important part of the lawyer’s job is attending the interview with you. At the interview, the lawyer generally just takes notes and can make a brief closing statement or ask a few questions at the end. We have had clients use AP to travel and re-enter; they have not had problems. If you are concerned, talk to a lawyer to review your situation before you use AP. If your family lies to get a visa, and the lie is discovered, it could cause them to get blocked from ever receiving a visa here. That is a bad idea, as it is not hard for the government to discover such lies. Take care, Jason

Reply

Kefah March 16, 2017 at 11:20 pm

I had my interview in Jan 2016 and no decision on my asylum case until today. I am 71 years old and my wife is 67 years old how long we have to wait? Please help us, we need an advise from you. With my best regards.

Reply

Jason Dzubow March 17, 2017 at 12:46 pm

Unfortunately, such delays are pretty common especially for people from majority-Muslim countries (this was a problem well before Trump). You can contact or go to the asylum office to inquire about your case. You can find their contact info if you follow the link at right for Asylum Office Locator. If that does not help, maybe try contacting the USCIS Ombudsman – a link is also at right. Good luck, Jason

Reply

Zubair khan March 16, 2017 at 6:16 pm

Hi
Me and my family with 4 kids under 14 on asylum pending from 2014 me and my wife alredy renew work permit but we not renewd our kids work permit because we think they are not working and going to school full time.what you suggest we should renew their work permit or not because fee is very high and we can’t afford it.waiting for kind reply.Children work permit alredy expired.

Reply

Jason Dzubow March 17, 2017 at 12:29 pm

It’s up to you. Most young children do not need a work permit. If the fee is the problem, you can submit a request for a fee waiver, form I-912, available at http://www.uscis.gov. Take care, Jason

Reply

wal March 11, 2017 at 7:22 pm

Hi Jason
I did my asylum interview 4-months ago and no decision yet am from 6-countries that trump ban .my family still overseas ,How Trump travel ban effect my case

Reply

Jason Dzubow March 13, 2017 at 6:34 am

I think the EO itself does not affect your decision (but who knows what is going on internally at the asylum office, so maybe it will cause more delay). The EO may affect the ability of your family to join you here, but even that is unclear and it may have no effect. We will have to wait to see how the government implements the EO. You may want to contact the asylum office to inquire about the status of your case. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

Reply

wal March 13, 2017 at 11:36 pm

Thank y for ur kindness. I got information that my asylum application is been bending for decisions what this mean

Reply

Jason Dzubow March 14, 2017 at 6:39 am

If you are interviewed already, it means that USCIS is working on a decision. It could be fast or it could take many months. Take care, Jason

Reply

Maya March 11, 2017 at 10:59 am

Hi Jason,

Are pending asylum applicants subject to medicare and social security tax? I was employed with an EAD granted through pending asylum and medicare and social security payments were deducted from my paychecks. The IRS website says non-alien residents are exempt from these (with some exceptions), but I don’t see any particular info about pending asylum applicants. Would you have any idea?

Reply

Jason Dzubow March 13, 2017 at 6:26 am

I am not sure – but I think if you are working, you pay all that, even if you cannot (at this time) benefit from it. Maybe check with an accountant if you think you qualify for an exemption from those taxes. Take care, Jason

Reply

JC orellana March 7, 2017 at 12:45 am

Hello. I have a question. I was granted prosecutorial discretion after 10 years of living in the US. I did multiple appeals as I received deportation order 3 times. I finally got Prosecutorial discresion granted and a TPS which I have to renew every Year. I have not heard anything about such cases in the news. Is there changes so far? are they reopening the cases or denying TPS to cases like mine ?

Reply

Jason Dzubow March 8, 2017 at 10:42 pm

If you have TPS, you are probably fine, as long as TPS keeps getting extended. As for Prosecutorial Discretion, it is unclear what the government will do with people who have that, but as long as you have TPS, even if PD is ended, you should be ok. Take care, Jason

Reply

Danish March 6, 2017 at 6:39 pm

I filled my i730 for my family in December, how long it takes for the approval letter and will new EO will affect on my family petitions while they are in Pakistan?
Please explain me

Reply

Jason Dzubow March 8, 2017 at 6:03 pm

The new EO should not affect your I-730 cases. Processing time varies. We have seen I-730 petitions get approved in anywhere from 1 month to many months. Then the case goes to the Embassy, where it probably takes another few months. Take care, Jason

Reply

Lia February 20, 2017 at 3:30 am

Hi Jason, do you know what will happen to those who have been granted Prosecutorial Discretion in the past? What’s likely to happen to them in the near future? Thank you

Reply

Jason Dzubow February 20, 2017 at 8:10 am

We do not know yet, but it will create a real mess if they try to put all those cases back before judges. I suspect that such people will be allowed remain in PD, as there is not much else to be done with their cases, and there is not enough resources to reopen all those cases. Take care, Jason

Reply

Lia July 17, 2017 at 3:24 am

Thanks Jason,

Also, do you know if its possible to get a greencard after being under the status of prosecutorial discretion for some years? I was informed that those with PD status are unable to travel outside the country, correct?

Reply

Jason Dzubow July 18, 2017 at 6:20 am

Unless they get permission from DHS (which is probably almost impossible), a person with PD cannot travel outside the US and return. A person with PD may be able to get a green card, but they need some way to do it – like marriage to a US citizen. If you think you have a path to a GC, talk to a lawyer to see whether it might work. Take care, Jason

Reply

Nolan February 4, 2017 at 2:29 pm

I applied asylum I have been watching at the interview bulletin schedule . Most of the office are not moving at all.even Arlington considered as one of fatest has been stuck since for almost a year on jan 2014 interviews. Is really this bulletin being up dated.

Reply

Rayan February 5, 2017 at 12:54 pm

interview bulletin are useless,not just for Asylum cases but even for adjustment cases

Reply

Jason Dzubow February 5, 2017 at 11:29 pm

I think it is – it is just moving slowly. If you have a reason to expedite (health problem, family separation, etc), you can ask the asylum office to expedite your case. Contact them for the procedure. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

Reply

Jamie February 3, 2017 at 11:21 pm

Hi Jason, I have a question. I have a pending asylum since 2015 and still waiting for my interview. I’m from Iran. My question is:” what will happen for my cause? are they stopped interviewing
asylum-seekers from these seven countries who lives for years in America and waiting for their interview?”

Thanks Jamie

Reply

Jason Dzubow February 5, 2017 at 11:14 pm

USCIS is currently adjudicating all cases, even if you are from a banned country. This may change in the future, and you will have to watch the http://www.USCIS.gov website for info about what is happening, but for now, cases are being processed as before. Take care, Jason

Reply

Alex February 3, 2017 at 9:29 pm

Hi Jason, I have a question. I have a pending asylum since 2014 and still waiting for my interview. Im from Kazakhstan just recently got extended my EAD for two years. My question is can Trump sign Executive Order to remove or deport people with Pending Asylum from the States. Or can he send people back to their countries and make them wait for their interview outside of the US?? Thanks Alex

Reply

Jason Dzubow February 5, 2017 at 11:04 pm

An EO cannot violate the law, and the law – and the Constitution – require that you have certain procedures (trial with a judge, appeal) before you can be deported. So Trump cannot simply send you out of the country without going through the procedures. Take care, Jason

Reply

Leave a Comment

{ 2 trackbacks }

Previous post:

Next post: