“Making America Great Again” – An Immigration Attorney’s Perspective

Since November 8, 2016 – the date on which the United States voted Republican candidate Donald Trump as the 45^th President of the United States – I have received numerous inquiries about what a Donald Trump presidency would mean for U.S. immigration policy and the immigrants and nonimmigrants living in the United States. The questions have stemmed from curiosity, concern, and sometimes outright fear. While no one can predict exactly what will happen over the next four years, there are some good indicators of where priorities and enforcement are likely to occur. In light of the recent executive orders signed by President Trump which track the President’s campaign promises, and the extensive and often inaccurate media coverage of the same, I believe a more neutral analysis is in order.

The most recent Executive Order and the one that has sparked the latest protests in the United States, is Executive Order Protecting the Nation from Terrorist Entry Into the United States”, enacted on January 27, 2017. There has been much uproar about “Trump’s Immigration Ban” and supposed “mass deportations of all Muslims”. In reality, this Executive Order temporarily restrict travel to the United States by foreigners – Muslims and non-Muslims – from seven specified Middle Eastern countries, namely, Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Since the signing of the executive order, the White House has clarified that lawful permanent residents of the United States from any of these seven designated countries will be considered for entry to the United States on a case-by-case basis. In addition to the temporary travel ban, all resettlements of refugees from any country are on hold for 120 days and refugees from Syria are prohibited from entering the United States until further notice. The executive order does not call for the wholesale rounding up and deporting of Muslims or other foreigners without criminal records who are currently lawfully present in the United States. Nor does the executive order ban all Muslims from the United States. It is also worth pointing out that President Barack Obama issued a similar executive order in 2011 with regard to Iraqi refugees, who were barred from entry to the United States for a period of 6 months, but without the media fanfare surrounding President Trump’s executive orders.

Some are calling the President’s actions unconstitutional and claiming that he has exceeded his authority. However, under the Immigration and Nationality Act (INA), specifically 8 U.S.C. § 1182(f), the president has the authority “for such period as he shall deem necessary, [to] suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This authority provides for the blanket policy in the recent executive order. However, Customs and Border Protection (“CBP”) already had the discretionary authority to question, detain, and/or refuse entry to the United States to any non-U.S. citizen prior to the executive orders. The issuance of a visa for travel to the United States has never been a right to demand entry to the United States by the visa holder; rather, the visa permits the holder to apply for admission to the United States, subject to the discretion of the U.S. Department of Homeland Security and CBP. In short, issuance of a visa does not guaranty entry to the United States.

The recent travel restrictions have diverted much of the focus from overall immigration policy, which is not substantially different from that under the Obama administration. During the Obama administration, the Department of Homeland Security focused heavily on identification and removal of aliens with criminal records. President Trump’s executive orders, aside from the recent travel restrictions, have similarly focused on the detention and removal of aliens involved in criminal activity, with the addition of consequences for so-called “Sanctuary Cities”.

One thing that is for certain is that potentially big changes – temporary and permanent – are likely on the horizon. Any non-U.S. citizen should plan for potential complications in returning to the United States following foreign travel. Such complications could range from enhanced screening, to secondary inspection, to outright refusal of admittance to the United States. We have always recommended and continue to recommend that non-U.S. citizens carry supporting documentation for their requested visa classification with them whenever traveling outside the United States. This includes proof of current employment for those with employment-based visas and proof of marriage for those with lawful status based on marriage. U.S. citizens traveling to and from any of the seven designated countries should similarly anticipate enhanced scrutiny upon a return to the United States. Finally, anyone with deferred action (“DACA”) is strongly encouraged to remain in the United States notwithstanding a grant of advance parole. When in doubt, you should contact an experienced immigration attorney prior to departing the United States.

Annie Lahren is an attorney at Pender & Coward who focuses her practice on immigration law, civil litigation and family law.  She can be reached at (757) 490-6293 or alahren@pendercoward.com.