Nov 13, 2016 Intersection of Trump, undocumented immigrants and criminal defense
Donald Trump on 60 Minutes on November 13 addressed a priority to deport “millions” of undocumented immigrants with “criminal records.”
Not so fast, Mr. Trump. The law is more complex and protective of immigrants than that.
First, we do not automatically know whether an immigrant is unlawfully present in the United States. Even if the immigrant says s/he is here without a visa nor other permission to be in the United States, that does not end the inquiry. Ideally, the immigrant will obtain a qualified immigration lawyer to look into whether the immigrant has had deportation proceedings withheld or deferred, has applied for asylum, has obtained temporary protected status against deportation, or has an immigrant parent who sought or obtained immigration benefits for the entire family when the immigrant was a child. Sometimes a Freedom of Information Act request — with an accompany Privacy Act authorization — will be needed to obtain such information.
Second, “criminal record” is not a term of art in United States law. A mere criminal prosecution without a conviction or other relevant final criminal court disposition does not justify deporting an immigrant lawfully present in the United States. Granted, Trump on 6o Minutes was addressing immigrants who are not lawfully in the United States, but we must be ready for him also to push more aggressively than the Obama Administration for deportation of lawfully present non-United States citizens who get convicted of certain crimes.
Third, regardless of the true number of convicted people who are present in the United States without documentation, the Trump administration is going to run into a bureaucratic and budgetary nightmare not to prioritize its efforts to deport non-citizens charged and convicted with crimes, starting with felonies as serious as murder, rape and robbery, rather than such misdemeanors as DWI, reckless driving, shoplifting, disorderly conduct and trespassing.
Perhaps Trump does not know that before one can be deported after having entered the United States, the immigrant is entitled to challenge deportation before an immigration administrative law judge. Whether or not a deportation order from the immigration trial judge gets stayed pending appeal, the immigrant can also pursue appellate avenues where available.
Now that Trump will become president in January 2017, the stakes are all the higher on criminal defense lawyers to avoid criminal court dispositions that will harm the immigration prospects and status of their non-United States citizen clients. For starters, Trump cannot be relied on to continue President Obama’s discretionary policies and actions to defer adverse action against undocumented immigrants who either arrived in the United States as children or who have not been in the criminal court system. Beyond that, immigration law and procedure under Trump may find the federal immigration enforcement authorities all the more aggressive in seeking pretrial detention (under immigration law as opposed to seeking detention in criminal courts) of documented and undocumented immigrants charged with certain crimes.
Now more than ever, criminal defense lawyers should be getting up to speed on relevant immigration law and in building teamwork with qualified immigration lawyers for relevant advice.