13 Former IJs and BIA Members Write Letter to DHS Concerning Immigration Detention

Thirteen former Immigration Judges (IJs) and members of the Board of Immigration Appeals (BIA) wrote a letter to the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, stating concerns with regard to the current immigration detention system and policies. The letter does not only include critiques of the problems, but also proposes remedies. In this article, we will briefly examine the criticisms and proposed solutions included in the letter.

See the full letter [link] (AILA Doc. No. 16112030 (posted on 11/2/16)).

1. OVERVIEW OF THE MAIN ISSUE

The writers of the letter express the concern that, based upon their experience, they believe that expansion of immigration detention “comes at the expense of basic rights and due process.” Citing to a recent Wall Street Journal article, the letter explains that the United States will soon detain 45,000 individuals on a daily basis [link].[1] Furthermore, these individuals in immigration detention are detained “in a sprawling network of immigration detention facilities largely operated by private prison companies and local jails.”

2. LACK OF ACCESS TO COUNSEL FOR INDIVIDUALS IN IMMIGRATION DETENTION

The letter cites to a recent study that indicated that 86% of individuals in immigration detention are unable to obtain legal representation. Citing to the same study, the letter explains that an individual in detention who is represented by an attorney is twice as likely to secure immigration relief than an individual without an attorney. The letter expresses the concern that increasing the use of immigration detention will only exacerbate this disparity.

To alleviate this issue, the letter proposes various ideas for reducing the numbers of individuals in detention that we will examine in the subsequent sections. The letter advises the DHS to not enter into new contracts with detention facilities or renew existing contracts “without a thorough assessment of the viability and proximity of access to legal services.

3. MANY SOUTHERN BORDER CROSSES MERIT RELIEF UNDER REFUGEE LAWS

The letter explains that many individuals who are crossing the southwest border illegally are fleeing from violence and merit asylum protection under the immigration laws [see blog]. The letter adds the caveat that these individuals are likely to establish eligibility for asylum only “if they are properly represented and able to cogently present and document their claims.”

Nevertheless, the letter cites to statistics indicating that between 11,000 and 15,000 families and asylum seekers entering via the southern border are held in Immigration and Customs Enforcement (ICE) detention each day. In fact, such individuals are prioritized for detention under the DHS's current civil enforcement priorities [see article]. Despite immigration detention being civil in nature, the letter argues that “ICE detention facilities are jail-like facilities operated by private prison companies or local jails contracting with the ICE.” The letter cities to a recent study indicating that many immigration detention facilities are substandard, and that DHS officials have expressed concerns that the standards of many of the facilities do not meet the requirements of the Prison Rape Elimination Act. It takes the position that immigration detention endangers already vulnerable individuals and families who came to the United States to escape violence in their homelands.

The letter proposes three ideas for alleviating the issues expressed in this section. First, it recommends ending family detention, a proposal that has already been recommended by the ICE's Advisory Committee on Family Residential Centers [PDF version]. Second, it recommends ending the mass detention of those seeking asylum by with regular removal proceedings and by properly implementing the ICE's 2009 Parole Directive. Finally, the letter supports a recommendation by United States Senator Patrick Leahy to grant Temporary Protected Status (TPS) [see article] to individuals from the Northern Triangle and Haiti who “have fled deteriorating conditions in their home countries.”

4. PERMIT IJS TO MAKE INDIVIDUALIZED ASSESSMENTS OF THE PROPRIETY OF CONTINUED DETENTION

The letter takes the position that IJs should be given the authority to make individualized assessments on whether an individual merits detention. It states that in 2015, 86% of individuals who were released from custody on bond set by an Immigration Court appeared at their subsequent hearings. However, despite the strong evidence indicating that IJs make sound judgments regarding bond determinations, only about half of the individuals in detention in 2015 received a bond hearing before an IJ. The letter attributes this to the “DHS's overly aggressive use of expedited removal [see article] procedures and harsh implementation of the federal detention statute.”

The letter includes two recommendations for increasing the number of bond hearings for individuals in immigration detention. Firstly, it urges the DHS to follow recent federal court decisions that interpret the Immigration and Nationality Act (INA) as requiring individualized custody determinations for those who are placed in detention for long periods. The letter cites to the Second Circuit decision in Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) [PDF version], and the Ninth Circuit decision in Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015) [PDF version]. Secondly, the letter proposes reconsidering certain aspects of the mandatory detention provision found in section 236(c) of the INA. The letter recommends that individuals subject to section 236(c) be permitted to be released on restrictive forms of custody short of detention. Furthermore, the letter recommends that 236(c) be limited to apply only to those apprehended by the ICE at the time of release from criminal custody on the basis of a serious criminal conviction.

SIGNATORIES

The letter is signed by ten former IJs and three former members of the BIA.

The former IJs who signed the letter are the Honorable: Sarah Burr, Bruse J. Einhorn, Christopher Grant, Gilbert T. “Thad” Gembaz, John F. Gossart, William Joyce, Eliza Klein, Pedro Miranda, and Bruce Solow.

The former members of the Board who signed the letter are the Hhonorable: Lory Rosenberg, Paul Wickham Schmidt, and Gustavo Villageliu.

We discuss one of Judge Rosenberg's most notable pieces of writing on site: her dissenting opinion in the Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999) [PDF version] [see article].

CONCLUSION

The letter highlights many crucial concerns regarding the current state of the immigration detention system, and how those issues may be exacerbated by an influx of new detainees. To be sure, it is imperative that the immigration laws be properly enforced. However, enforcement cannot come at the expense of ensuring that all persons subject to U.S. laws, regardless of immigration status, are treated humanely and afforded the access to legal resources that they are entitled to under our laws. Accordingly, the issues raised and solutions offered by the former IJs and Board members in their letter have merit and should be considered by officials at the DHS.

Although relief is never guaranteed, the letter explains how individuals in immigration detention with effective legal representation are far more likely to secure immigration relief than those who lack such counsel. It is imperative for an individual subject to immigration detention to seek legal representation immediately for a full assessment of his or her specific situation. To learn about more issues involving immigration detention, please see the Immigration Detention category on our website [see category].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Barrett, Devlin, “Record Immigrant Numbers Force Homeland Security to Search for New Jail Space,” wsj.com. (Oct. 21, 2016)

Lawyer website: http://myattorneyusa.com

DHS Secretary Johnson Releases Statement on Southwest Border Security

INTRODUCTION: DHS DIRECTOR RELEASES STATEMENT ON SOUTHWEST BORDER SECURITY

On October 17, 2016, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, released a statement on southwest border security [link]. The statement includes border security statistics as well as notes about recent immigration events. Finally, because Secretary Johnson's tenure will likely come to an end with the conclusion of President Barack Obama's term in office, he offered his hopes for the future of immigration law and border security going forward. In this post, I will examine each of the three aforementioned parts of Secretary Johnson's statement on border security.

STATISTICS

Secretary Johnson's statement includes the following chart [see article] of southwest border apprehensions for fiscal years 2013, 2014, 2015, and 2016.

In total, 408,870 persons were apprehended trying to cross the southwest border illegally in FY-2016. While this was a marked increase from the 331,333 in FY-2015, it was slightly fewer than the 414,397 in FY-2013 and dramatically fewer than the 479,371 in FY-2014. 59,692 unaccompanied children were apprehended in FY-2016, making that the second highest number of the four years. FY-2016 also saw the largest number of family members apprehended at the border over the past four years. Conversely, FY-2016 saw far fewer individuals apprehended at the border in FY-2016 than in FY-2013 and 2014, although slightly more than in FY-2015.

Secretary Johnson explains that FY-2016 reflects a trend in apprehensions at the border. From the 1980s to 2008, the number of apprehensions at the border was far higher than the numbers seen over the years included on the chart [PDF version]. From 1983-2006, the number of apprehensions exceeded 1,000,000 19 times in 24 years, reaching its highest point with 1,643,679 in 2000.

For the years in which the numbers were the highest, there were many more families and individual adults from Mexico endeavoring to cross the border. However, the number of Mexican citizens attempting to cross the border has been in steady decline, in contrast with the growing number of Central Americans — especially families and unaccompanied children — apprehended over the past few years. Secretary Johnson explained that more Central Americans than Mexicans were apprehended for the first time ever in FY-2014, which happened again in FY-2016.

SECRETARY JOHNSON'S ANALYSIS OF THE SITUATION ON THE SOUTHERN BORDER

While overall illegal border crossings and apprehensions have decreased, the number of unaccompanied children from Central America apprehended presents immigration authorities with unique challenges in balancing immigration enforcement priorities with humanitarian considerations. Secretary Johnson explains that the latter includes “providing individuals with the opportunity to assert claims for asylum and other forms of humanitarian relief.”

To help alleviate the problems stemming from the influx of migrants from Central America, the DHS launched an initiative to make it easier for certain qualified applicants to seek refugee status while abroad instead of attempting to cross the southwest border illegally. Under this agreement, the government of Costa Rica will host a limited number of persons from Honduras, El Salvador, and Guatemala who may have their cases for refugee status considered by DHS officers [see blog]. Secretary Johnson also noted that the DHS has announced an expansion of the categories of individuals who are eligible for participation in the Central American Minors Program when accompanied by a qualified child [link].

In a report issued by the American Immigration Lawyers Association (AILA), it was noted that certain classes of asylum applicants who are in immigration detention have had a high rate of success in seeking asylum.[1] AILA explained that 87% of mothers and children detained in family detention centers in Texas and Pennsylvania were likely to be found eligible for asylum and other forms of humanitarian relief by an Immigration Judge [PDF version].

ENFORCEMENT PRIORITIES

In November of 2014, President Obama and Secretary Johnson announced the creation of new immigration enforcement priority levels [PDF version]. Secretary Johnson stated that 99% of those currently in immigration detention fit within one of the three enforcement priorities created in 2014. Of those in detention, 85% are within the top priority level. Secretary Johnson explained that 35% of those deported by the Immigration and Customs Enforcement (ICE) in 2009 were convicted criminals, but that number stands at approximately 60% thus far in 2016.

HAITIAN NATIONALS

Secretary Johnson observed that the DHS has seen an “influx of Haitian nationals” on the southern border. On September 22, 2016, Secretary Johnson announced that the DHS would resume removing Haitian nationals in accordance with the DHS's enforcement priorities [see blog]. However, on October 4, 2016, Secretary Johnson temporarily suspended removal fights to Haiti in light of the humanitarian crisis resulting from Hurricane Matthew [see blog]. Nevertheless, the Secretary's September 22 decision remains in effect, and the DHS is working with Haiti to resume removals to Haiti “in as humane and minimally disruptive a matter as possible.”

SECRETARY JOHNSON'S PROPOSALS GOING FORWARD AND MY THOUGHTS

Secretary Johnson stated that border security alone cannot deal with the factors causing so many Central Americans to attempt to cross the southern border illegally. Furthermore, Secretary Johnson stated, “Walls alone cannot prevent illegal migration.”

Regarding the first problem, Secretary Johnson noted that the U.S. government is making a “long-term investment in Central America” to address the underlying causes of the current migrant crisis. Secretary Johnson urged Congress to up the United States' investment in the region in FY-2017.

On the second point, Secretary Johnson encouraged Congress “to make smart investments in border security technology, equipment and other resources.”

Secretary Johnson stated toward the end of his section on the southwest border that “the system is broken.” To this effect, he urges Congress to pass “comprehensive immigration reform.” Secretary Johnson's contemplated comprehensive immigration reform includes “reckon[ing] with millions of undocumented immigrants who live in the shadows” by giving them “the opportunity to come forward and get right with the law.”

On the first two points, I generally agree with Secretary Johnson. While I will not opine on the specific amount or nature of the investment we ought to make in Central America, it is indisputable that the United States has a strong interest in the stability of the countries at the root of the current migrant crisis. In addition to assuaging the humanitarian situation, it is clear that the United States is spending significant money and resources on reckoning with migrants from Honduras, El Salvador, and Guatemala who are crossing the southwest border illegally. On the second, I concur with Secretary Johnson that it is important for Congress to equip the Border Patrol with new security technology and equipment, as well as to ensure that it has the staffing levels to properly execute its important duties.

On the last point, however, I disagree with Secretary Johnson. The Secretary proposes that we should pass a “comprehensive immigration reform” measure that allows undocumented immigrants “who live in the shadows” to come forward. While I am a proponent of legalization under the right circumstances for many of the people here illegally, the solution to a “broken” immigration system is not immediate legalization, as the Secretary seems to propose. . This approach was tried by the Congress and President Ronald Reagan in 1986, and it was ultimately unsuccessful. The better approach would be to pass “comprehensive immigration reform” laws and regulations that focus on improving border security, policing of overstays, and reorienting our priorities toward attracting and admitting highly skilled immigrants instead of being most conducive to family migration. Once the effects of implementing these reforms can be measured, and are found to meet certain success benchmarks, only then can move we move forward to determining the best way to create a legalization program that is fair, humane, and that will ultimately advance the American interests by allowing many of those here illegally to “come forward” while not incentivizing further violations of the immigration laws. Please see my comprehensive blog post on this issue in the context of the November 2016 elections to learn more [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. AILA Doc. No. 16102501

Lawyer website: http://myattorneyusa.com

What is TPS Status?

What is Temporary Protected Status?

Temporary Protected Status (TPS) is a temporary immigration benefit available to certain nationals of countries that are designated by the Secretary of Homeland Security for TPS.  A country may be designated for TPS when the Secretary of Homeland Security determines that the conditions in the country render the country unable to handle the return of its nationals.

Although TPS is not a nonimmigrant or immigrant status, individuals on TPS may be eligible for employment authorization.  Additionally, an individual on TPS may simultaneously hold a nonimmigrant status and may also seek adjustment of status or any other immigration benefit for which the individual is eligible.

Rules for Eligibility for Temporary Protected Status

First, in order to be eligible to register for TPS benefits, an individual must be a national of, or an individual without nationality who last habitually resided in, a country designated for TPS.  In general, if an individual is admitted into the United States as the national of a country that is not designated for TPS, the individual may not rely upon having the nationality of another  country that is designated for TPS in order to qualify for TPS (see Genco Op. No. 92-34 (INS), 1992 WL 136973).  The Administrative Appeals Office (AAO) has generally interpreted the laws as only permitting individuals to rely upon their operative nationality in applying for TPS benefits.

Even if an individual meets the nationality requirements for applying for TPS benefits, he or she may not register at any time.  Rather, an individual may only apply for TPS during his or her TPS designated country’s open initial registration period or re-registration period.  The individual must have been physically present in the United States since the effective date of the most recent designation of his or her country for TPS.  “Brief, casual, and innocent” departures do not break continuous physical presence.  In order to be eligible to register for TPS during a TPS country’s late initial filing period, the individual must be a nonimmigrant, granted voluntary departure, or granted relief from removal; have a pending application for change of status, adjustment of status, asylum, voluntary departure, or relief from removal; have been a parolee or had a pending request for re-parole; or be the spouse of an individual who is eligible for TPS.  The unmarried child of an individual eligible for TPS at the time of the TPS designated country’s initial designation for TPS or re-designation for TPS is eligible even if the application for TPS is filed late.

If an immigration judge determines that an individual in removal proceedings is eligible for TPS, the immigration judge may close proceedings and direct the individual to apply for TPS.  

Ineligibility Grounds for Temporary Protected Status

The following are grounds that will render an individual ineligible to apply for TPS or unable to maintain TPS benefits:

• Having been convicted of a felony or two or more misdemeanors in the United States;
• Being found to be inadmissible to the United States under section 212(a) of the INA (but not section 212(a)(5) or (7)), including non-waivable or criminal grounds;
• Being subject to a mandatory bar to eligibility for asylum;
• Failure  to meet the continuous physical presence and continuous presence requirements;
• Failure to meet initial or late initial TPS requirements; or
• Failure to re-register for TPS benefits without good cause.

An individual considering applying for TPS should consult with an experienced immigration attorney for an assessment of whether any grounds apply that would call into question the individual’s eligibility for TPS benefits.

Applying for Temporary Protected Status

There are three forms that are required in every TPS initial registration or re-registration:

• Form I-821, Application for Temporary Protected Status
• Form I-765, Application for Employment Authorization
• Biometrics services fee (except for applicants under the age of 14) regardless of whether biometrics need to be taken (re-registrants will often not need to have biometrics re-taken)

Regardless of whether the TPS applicant is seeking employment authorization, he or she must file the Form I-765.  However, if the applicant for TPS benefits is not seeking employment authorization, he or she may file the Form I-765 without fee.

Because inadmissible aliens are ineligible for TPS, an applicant who is inadmissible under a waivable ground of inadmissibility must file the Form I-601, Application for Waiver of Grounds of Inadmissibility, in order to seek a waiver of inadmissibility.  The Form I-601 has a filing fee as well.  It is important to note that if a waiver of inadmissibility is granted for an applicant for TPS benefits, the waiver will only apply to the TPS application.  This means if the TPS beneficiary subsequently seeks a different immigration benefit for which his or her inadmissibility ground would apply, the TPS beneficiary would have to have the file for waiver of inadmissibility for that purpose.

If the applicant is unable to pay the filing fee for any of the forms associated with the TPS benefits application packet, he or she may seek a fee waiver by filing the Form I-912, Application for Fee Waiver, or by otherwise submitting a written request.  The fee waiver application must be supported by evidence of the applicant’s inability to pay.  Applicants seeking fee waivers are advised to apply for TPS benefits as soon as possible during the initial registration or the re-registration period.  This is because a  denial of a fee waiver request will require the applicant to resubmit the TPS benefits application packet with the requisite fees.  Such applicants will most likely be eligible to re-file slightly after the registration or re-registration period, if necessary, but only if the USCIS determines there is “good cause” for the late filing.  Such applicants are advised to re-file for TPS benefits within 45 days of the fee waiver denial.

The TPS application packet must be supported by evidence establishing the applicant’s eligibility for TPS benefits in accordance with the form instructions.

Adjudication of Temporary Protected Status Application

For applicants for an initial grant of TPS, the USCIS will schedule an appointment for the applicant at an Application Support Center for biometrics.  This step may be skipped in most re-registration cases where the previously-taken biometrics are reusable.

If the USCIS requires more evidence, it may send the applicant a Request for Evidence or a Notice of Intent to Deny.  It is crucial for the applicant to respond expeditiously to such a request in order to remedy the insufficiency in the application.

If the USCIS denies the TPS application, the applicant may file an appeal with the USCIS’s Administrative Appeals Office within 30 days of the denial of the application.  The appeal must be filed on a Form I-290B with fee.  However, the applicant may seek a fee waiver by filing a Form I-912 in lieu of the fee.  Applicants who are denied TPS on certain criminal or security grounds that are non-waivable for TPS purposes may be ineligible to appeal, although such applicants may seek review from an immigration judge instead.

If TPS is granted, the applicant will not only be approved for TPS, but will also become employment authorized if he or she sought employment authorization, and was approved for such authorization, in applying for TPS.

Maintenance of Temporary Protected Status

An individual with TPS benefits must re-register for TPS during each re-registration period.  Failure to re-register for TPS will render an individual ineligible to maintain TPS.  TPS beneficiaries must notify the USCIS of any change of address.  TPS beneficiaries must also procure approval to travel in the form of a grant of advance parole.  A TPS beneficiary who is granted advance parole and returns under the terms of such advance parole will be permitted to return to the United States in TPS status rather than as a parolee.

An interesting situation arises when a TPS beneficiary is authorized for employment due to TPS but is simultaneously maintaining a nonimmigrant status that restricts employment.  Under current USCIS policy, the individual must follow all of the rules of his or her nonimmigrant status to maintain such status (USCIS, FAQs:  Statelessness and the Ability to Work for Joint F-1/TPS, published on AILA InfoNet at Doc. No. 15090306) (Sep. 3, 2015)).  As a result, for example, this means that an individual on both F1 student status and on TPS cannot maintain F1 student status if he or she uses the TPS employment authorization to engage in employment that would violate F1 student status.  In such a case, the individual would maintain his or her TPS but would have violated the F1 status.  An individual simultaneously maintaining TPS and status as a nonimmigrant should consult with an experienced immigration attorney for guidance on how to maintain both statuses.

Benefits of Temporary Protected Status

An individual maintaining TPS is shielded from deportation.  Furthermore, most individuals who are granted TPS will also be eligible for employment authorization if sought in the course of a TPS application.  TPS beneficiaries may apply for adjustment of status or change of status, and may be granted TPS even if holding a separate nonimmigrant status.  However,  a waiver of inadmissibility for TPS only cures inadmissibility for purpose of the TPS application.  TPS beneficiaries may apply for asylum, although the grant of TPS is not an element of proof for eligibility for asylum.

Temporary Treatment Benefits

If an individual who would be eligible for TPS seeks benefits outside of the registration period applicable to his or her country, he or she may be eligible instead for temporary treatment benefits.  If granted, temporary treatment benefits persist until a final determination of the individual’s eligibility for TPS is made.  The denial of an application for temporary treatment benefits does not prejudice a later application for TPS.

Advice

TPS is an enticing benefit for eligible individuals, offering legal status in the United States, relief from removal, employment authorization, and the ability to maintain a nonimmigrant status or change or adjust status.  It is important to remember, however, that TPS is a temporary benefit that may only last as long as the country in question is designated for TPS.  An individual seeking TPS or who is maintaining TPS should consult with an experienced immigration attorney for individualized guidance.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Temporary Protected Status TPS", "TPS and Dual Nationality When the Operative Nationality is that of a Non-TPS Country", "Using Employment Authorization from TPS While Holding Nonimmigrant Status"

Lawyer website: http://myattorneyusa.com

Immigration Issues and the Election #15: Reasons for Hope with President-Elect Trump and the GOP Congress

In this post, I will explain why I am optimistic about the 2016 election results, which swept Donald J. Trump into the Presidency of the United States and saw the Republicans maintain majorities in the U.S. Congress. To read my thoughts on how the election played out and some of the key races that I was watching, please see my companion post to this piece [see blog].

MY THOUGHTS ON THE RESULT

My blog posts here at myattorneyusa.com reflect my myriad concerns with President-Elect Trump on a variety of issues, both personal and political. I described the election between the President-Elect and Clinton as a “porta-potty fire” [see blog]. When I made my final endorsement, I was sure to reference my many concerns with the now President-Elect as a candidate [see blog].

That a person with severe character flaws and policy deficiencies went from a mere candidate to preparing to assume the Presidency of the United States in two months does not make all of my concerns about him disappear. To assuage my concerns, President Trump will have to prove capable as President. While we cannot be sure of what kind of President he will be until he takes office, there are a number of reasons, with my reservations granted, that I am excited about the election result and what we have in store for the next four years.

1. Elections Are Not Contested in a Vacuum. When there were better choices available than the President-Elect, I supported them. However, once Trump became the Republican nominee, I concluded quickly that the best option was to support his candidacy. President Barack Obama has, for eight years, weakened the United States abroad, exceeded his authority at home, and pursued disastrous policies on both fronts. With regard to immigration specifically, President Obama unilaterally enacted substantial deferred action programs without putting them through the proper administrative procedures or grounding them in his statutory authority [see blog]. Hillary Clinton ran promising not only to continue President Obama's disastrous policies, but expand upon them. I am relieved that she will not have an opportunity to do so. To say that President-Elect Trump isn't perfect is an understatement, but to say that he is far more likely than not to surpass the low bar set by the previous administration and promised by Clinton is grounded in reasonable analysis.
2. The Supreme Court. Had Clinton been elected, she would have likely had her choice for the replacement for Justice Antonin Scalia [see blog]. Fortunately, the Senate Republicans held their ground since the death of Justice Scalia and insisted that the next President, rather than President Obama, should be the one to pick his replacement. The gamble paid off to the extent that the Republicans held the Senate and won the Presidency. President-Elect Trump has promised to pick the next Supreme Court Justice from a list of very qualified conservative Judges. This pledge helped reassure me and many other skeptical conservatives to vote for him, and he owes it to the country to uphold his pledge. A conservative Justice to replace Justice Scalia will ensure that recent important decisions on political free speech, gun rights, and administrative procedure will be upheld. Furthermore, a President Trump will have the opportunity to fill federal courts across the country with qualified conservative judges, provided he surrounds himself with a team of good advisors for his judicial picks.
3. Access to Better Advisors. President-Elect Trump has not backed away from many of his disconcerting positions. He continues rail against free trade and seems to view foreign affairs as something to the effect of a protection racket. However, President-Elect Trump will now have access to the “best people,” as he likes to say, that the American right has to offer. It will be important to see if the President-Elect begins to surround himself with a better team of advisors during his transition, and whether we begin to see a shift in his discussion of these important issues that shows a greater depth of understanding than he has demonstrated thus far. Again, however, it must be noted that he has a very low bar to clear. While there are many reasonable concerns regarding Trump and Russia, for example, Eastern Europe has already been abandoned under President Obama. Israel has been treated with scorn by the Obama Administration, and may now look forward to more cordial relations, and less hectoring, under a Trump Administration. President Obama made one of the worst foreign policy blunders in recent memory in entering into the disastrous Iran Nuclear Deal, and President Trump has promised to chart a new course to attempt to undo the damage of the previous eight years.
4. The Republican Congress. While President-Elect Trump is not ideologically conservative, he has run as a Republican and generally shifted to the right from his long stint as a liberal Democrat. While the President-Elect cannot be entirely trusted by conservatives, we can certainly trust the Republican Senate and House. With Republican control of both houses, a President Trump should be less likely to be tempted to pursue a liberal agenda. Furthermore, Vice President-Elect Mike Pence should serve as an effective liaison between the White House and the Congressional Leadership, having once been part of the House leadership team himself. We should expect to see the GOP Congress to work quickly with President Trump to begin the process of repealing and replacing Obamacare and undoing the crippling regulations passed under the Obama Administration. To be sure, the President-Elect also campaigned on certain dubious proposals, like a one-trillion dollar infrastructure spending package. Furthermore, Trump has been entirely resistant to the concept of entitlement reform. While certain concessions will likely need to be made to a President Trump, it will be incumbent on the Republican leadership in Congress to work with Vice President-Elect Pence and the White House to chart a conservative course and temper a President Trump's more liberal inclinations on certain issues.
5. New Respect for the Constitution. It is possible that the prospect of a President Trump will chasten the Democrats. Over the previous eight years, Democrats have been cheerleaders to President Obama's executive overreach in the form of creative interpretations of regulations unmoored in statute, circumventing notice and comment rulemaking entirely, and effectively rewriting statutes when it was convenient for him to do so. This was all in the name of not only advancing a liberal policy agenda, but also in overcoming so-called Republican “obstruction.” We may expect that with the arrival of President Trump, the Democrats will rediscover their appreciation for the Constitution's limitations on the power of the executive, the separation of powers, and Congressional prerogatives. While I want to see a conservative agenda enacted, I would welcome such a shift from the Democrats. Congressional Republicans ought to join the Democrats in serving as a check on a President Trump, and let the Constitution, rather than short-term policy objectives, be their guide. If the prospect of a President Trump gives both parties a newfound respect for the Constitution and the separation of powers that could yield long-term benefits for American Government that would extend well past a Trump Administration. In 1992 and 2008, Democrats were elected to the White House with majorities in both houses of Congress. In 1994 and 2010, the Democrats were annihilated in the Congressional midterm elections. The President-Elect has certainly said things to raise questions regarding his understanding of the workings of the Constitution and restraints on the Presidency. If the Republican Congress serves as both a partner to and as a check on President Trump, the GOP will a long way toward avoiding the fate of the Democrats in the 1994 and 2010 midterm elections.

WHAT DOES THIS MEAN FOR IMMIGRATION?

Even subsequent to my announcement of my intention to vote for President-Elect Trump, I continued to express concerns regarding his immigration proposals. While he has shown improvement from the primary [see blog], the President-Elect has yet to show any serious understanding of immigration law and policy. He continues to advocate building a fantastical wall across the entire border with Mexico, a position that we should soon hope to see left behind. He has backed away from his proposals suggesting mass deportations, but it is unclear how he hopes to improve immigration enforcement policies and priorities. He has also backed away from his proposal to ban all Muslim immigration, instead adopting a more conventional position of seeking to restrict immigration in distinct categories from “countries of concern,” but it is not at all clear how he would designate countries of concern or improve vetting to identify individuals who pose a danger to the United States based on ideology. To this effect, a President Trump will likely suspend the Syrian refugee program, which is a position I support due to our inherent inability to properly vet such refugees [see blog].

While President-Elect Trump has suggested that he wants to reorient our immigration system toward attracting more highly skilled immigrants and away from family chain-migration, we have yet to see any proposals or suggestions for what he thinks such changes may look like. President-Elect Trump has pledged to rescind both DACA and DAPA, although it is unclear with regard to the former whether he will endeavor to work with Congress to replace it or offer a transition period to its beneficiaries. In any case, the election of Trump means that the judicial proceedings regarding DAPA and DACA+ will now be rendered moot [see blog].

Despite my concerns, I am hopeful that a President Trump will be better for immigration policy than President Obama has been. For one, Trump was elected in large part based on his promises for improved immigration enforcement. As the chief enforcer of immigration policy, there is much President Trump can do to this effect with the help of Congressional funding. It will be crucial to see who President Trump taps to be the Secretary of Homeland Security, Attorney General, and Secretary of State. President Trump's choices will go a long way toward showing how serious he is about improving our immigration system.

It is unclear whether a President Trump will seriously prioritize immigration reform in addition to seeking to improve enforcement. However, as someone who supports improving enforcement before addressing legalization, I am hopeful that as President, Trump will maintain his similar position on this issue and demand that Congress assist him with funding and legislation to improve enforcement before discussing legalization [see blog]. If a President Trump uses his leverage correctly, he could offer pro-immigration reforms for employment-based nonimmigrants and immigrants and the willingness to accept a legislative replacement for certain aspects of DACA as inducement to the Democrats, who are likely to be wary of a more conservative approach to immigration reform that does not promise immediate legalization.

However, there are many questions outstanding regarding what President-Elect Trump's approach to immigration will be, and where it falls as a priority for the Congressional leadership. For example, it is quite possible that the Congressional Republicans may use funding for new enforcement measures as a way to resolve an impasse with a President Trump on a different issue. It will be important for us to watch what President-Elect Trump says regarding immigration policy in the coming weeks, his selections for advisors and cabinet officers, and any statements from the Congressional leadership of both parties regarding immigration policy.

FINAL NOTES

Throughout the election, I have watched Donald J. Trump first with mortification and second with hope. Some supported him enthusiastically, some like me supported him reluctantly, and others vehemently opposed him. The American people have spoken through the electors, and they have decided that Donald J. Trump will be the 45th President of the United States. It has been heartening to see President Obama handle the beginning transition with the same graciousness and dignity that was afforded to him by President George W. Bush in 2008, and a testament to our republic that we appear to be headed for another smooth transfer of power. It is important for all of us, supporters and opponents, to follow President Obama's example in welcoming President-Elect Trump to the White House and wishing for his success. It will be incumbent on the soon-to-be President Trump to prove that he is an able President and earn the support of the American people, but the office he was elected to commands respect regardless of the occupant, and the decision of the American people should be recognized and accepted. Regardless of disagreements, we must have no patience for rioters, flag-desecraters, those who smear all of those who voted differently as bigots or traitors, and finally, those who refuse to accept the results of an entirely legitimate and free and fair election.

That being said, respect for the occupant of the Oval Office must be earned, not given. During the campaign, President-Elect Trump often conducted himself boorishly and made a number of incendiary and outrageous statements. His conduct early in the primary was such that I, a self-identified loyal conservative and Republican, was unsure if I would be able to support him were he to become the nominee [see blog].

Now that President-Elect Trump has been entrusted with the most important office in the most powerful country in the world, he must shift from his campaign posture to preparing to undertake the awesome responsibilities of the American Presidency. In his autobiography, our 30th President, Calvin Coolidge, wrote the following:

“The words of the President have an enormous weight and ought not to be used indiscriminately.”

President-Elect Trump could find Coolidge's wise quote pertinent in two ways.

Firstly, a President Trump must stay away from Twitter and from petty insults directed as opponents. He is no longer responsible for himself and his brand alone, but for a country of over 300 million people. The words of the President have weight that the words of a private citizen do not, and it will be telling to see the extent to which President-Elect Trump understands this.

Secondly, President-Elect Trump has a responsibility to address some of the rhetoric he wielded in the primary. He must reassure people that as President, he will seek only to enforce the laws fairly and impartially as they are written, with his Constitutional responsibilities and the safety and liberty of the American people at heart. Merely intending to do so is not enough. Many individuals were personally frightened and offended by some the President-Elect's more outlandish statements during and prior to his campaign, and, regardless of his actual intent, it cannot be said that this was always without basis in his words. Many of Trump's supporters feared, with ample justification, that a President Clinton would threaten their freedom of speech, freedom of association, religious liberty, and the right to bear arms. It is important to recognize that many of Clinton's supporters fear that a President Trump will enforce the law disparately based on race or religion, and that he devalues people based on these characteristics or based on sex. President-Elect Trump showed graciousness in his victory speech and in his meeting with President Obama. It would be highly encouraging to see the President-Elect take responsibility for many of his more indefensible statements, and work to calm the fears of many Americans who felt alienated by his campaign between now and his inauguration.

Beyond it being the right thing for President-Elect Trump to do, working to address the alienation that his campaign caused for many good Americans will show that he and the Republicans are ready to not only take advantage of the Democrats having alienated large swaths of the electorate over the previous eight years, but also that they intend to not repeat the same mistakes.

I have enjoyed writing this series of blog posts about immigration issues and the election, and I hope that you have found the posts interesting, thought-provoking, and perhaps, on occasion, provocative. With the elections complete, we will have plenty more to blog about regarding immigration, law, and politics in general as we await the inauguration of President-Elect Trump and the new Congress. Please see my opening blog post in the series for a directory of all of the previous posts that I wrote [see blog].

In the spirit of moving on from a contentious election, I will leave you with a second passage from the autobiography of Calvin Coolidge:

“It would be exceedingly easy to set the country by the ears and foment hatreds and jealousies, which, by destroying faith and confidence, would help nobody and harm everybody.”

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