In a climate of understandable confusion, fear, paranoia, and demoralization in the wake of President Trump’s Executive Actions, there are five reasons for immigrants to have hope. In particular, those immigrants who dread being caught by immigration enforcement officers and who fear being deported from the United States, there are both protections under the law and people poised to advocate for immigrants rights.
1. In a long standing precedential decision, the United States Supreme Court held that all individuals, including documented and undocumented aliens, are entitled to due process. Due process is a fundamental protective entitlement that acts as a safeguard from arbitrary or automatic deportation. Specifically, in 1996, (Calcano-Martinez v. INS and INS v. St. Cyr), the Supreme Court affirmed the right of “noncitizens” to seek federal court review of legal interpretations made in deportation cases. In other words, the United States cannot physically deport an alien from the United States without giving him or her the opportunity to have a formal removal (deportation) hearing before an Immigration Judge where they may plead their case. After hearing the merits case, the Immigration Judge has the discretion to allow the noncitizen to remain in the United States.
2. Undocumented aliens can save themselves from removal and be granted lawful permanent residence (“green card”) by an Immigration Judge under a law called Cancellation of Removal if they can successfully prove three things. First, they have been in the United States for 10 years. Second, they are of good moral character. Third, their removal would cause extremely unusual hardship to a U.S. Citizen or lawful permanent resident spouse, parent or child. A seasoned and skillful immigration lawyer will assist the client in proving their merits and in demonstrating why they need to remain in the United States.
3. It is possible that President Trump’s executive actions will be deemed unconstitutional and will be overturned. Many are positing that the Muslim ban is a violation of the First Amendment’s Establishment Clause, which prohibits the government from favoring one religion over another. Furthermore, the Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin. Several Federal Judges have already blocked deportations in emergency rulings. The ACLU has already filed suit to challenge the executive action, arguing that the order is unconstitutional and violates due process, equal protection, international law, and immigration law.
4. Although there are fears of mass deportations, the logistics, politics, and economics of deporting over 11 million undocumented immigrants renders the likelihood of such an occurrence virtually impossible. In addition to the incredible humanitarian costs and legal issues and beyond the immediate costs of hiring thousands of immigration agents to remove millions of people from their homes, the economic effects of forcibly removing millions of workers from the labor force would be enormous, potentially leading private-sector output to decline by hundreds of billions of dollars. In a May 2016 article co-authored by Ben Gitis and Jacqueline Varas, as part of an American Action Forum study, it was determined that the direct costs of dramatically expanding immigration-enforcement agencies and courts to deport roughly 11 million people would cost the US government an estimated $400 billion to $600 billion.
5. Finally, it is important for undocumented individuals to know that they are not alone. Beyond the many advocacy groups, including the American Immigration Lawyers Association (AILA), who are working strenuously to lobby for immigrant protections and overturning of the executive actions, there are impassioned private immigration lawyers who will do everything in their professional power to advocate for their immigration clients in court and try to protect them from being removed from the United States.