Rolling Stone: “Why Trump's Immigration Policy Is a Legal Mess”

Last week Secretary of the Department of Homeland Security (DHS) John Kelly released two memos aimed at detailing how his department would implement President Trump’s executive orders on immigration. While the memos confirm and clarify fears about the intention of the executive orders, as Matthew Bray noted, they fail to answer some fundamental questions about how the administration will prioritize its use of resources if nearly everyone is a priority. Additionally, legal experts already believe there are ways that these orders, just like the travel ban, could be successfully challenged in court. Omar Jadwat, director of the ACLU's Immigrants' Rights Project, and Camille Mackler, director of legal initiatives for the New York Immigration Coalition, detail in an interview with Rolling Stone what could be several potential legal problems with Trump's immigration policy. 

It Would Impede Access to a Lawyer

What the memo says: Immigrants arriving from a contiguous country—that is, Mexico or Canada—can be returned to that country, no matter where they're originally from, "pending the outcome of removal proceedings."

What an expert says: This involves due process—and due process is a right guaranteed under the Fifth Amendment. "The Supreme Court has held that you're entitled to a lawyer in your immigration court proceedings…How are you going to ensure that the due process protections of immigration proceedings are upheld if you're forcing somebody to be in a foreign country, appearing via video?" Mackler says. "Just as a practical matter, how is a lawyer supposed to represent somebody when they are that far away?"

It Would Lead to Quicker Deportations Without a Hearing

What the memo says: With exceptions only for unaccompanied minors and political asylees, DHS plans to make undocumented or improperly documented immigrants eligible for "expedited removal"–deportation without any kind of hearing–if they have been in the US for less than two years. This changes a policy that held that only immigrants apprehended within 100 miles of the border and fourteen days of their arrival were eligible for expedited removal. 

What an expert says: This could lead to another potential Fifth Amendment violation. "Expedited removal is a big due process problem," Jadwat says. "The notion that you could basically deport somebody and then give them a hearing later about whether you should have deported them seems totally contrary to any basic notion of even logic."

It Would Bring Back Secure Communities, a Problematic and Abandoned Bush-era Deportation Program

What the memo says: DHS calls for the reinstatement of Secure Communities, a deportation program created by former President George W. Bush that used local and state law enforcement to detain non-citizens. Former President Obama replaced this program with the Priorities Enforcement Program, which prioritized more serious criminals for deportation.

What an expert says: Secure Communities was abandoned because "the government was consistently losing in court, and courts were repeatedly disapproving of the way the federal government was using detainers," Jadwat says. "There's a big footnote in [the DHS memo ending Secure Communities] that basically explains: Here are a bunch of the cases that have gone against us, which is a big part of the reason we're changing from S Com to PEP."

It Could Violate Privacy Rights of Immigrants

What the memo says: DHS intends to create an office that would provide the victims of crimes perpetrated by undocumented immigrants with information about the offender's "immigration status and custody status, and [an assurance] that their questions and concerns regarding immigration enforcement efforts are addressed." President Trump has also stated in an executive order that it would distribute a weekly list of criminal actions committed by undocumented immigrants, a move that is likely to further provoke anti-immigrant sentiment.

What an expert says: These proposals could be challenged on privacy concerns. "Suspending the Privacy Act rules for anyone except US citizens and green card holders—that had actually been found...to not be practicable because it's very, very hard from an agency standpoint to track when somebody becomes a green card holder or US citizen for the purposes of figuring out whether the Privacy Act applied to them or not," Mackler says. "The privacy violations, and potential of [the government] exposing themselves to libel and slander or anything like that by the publication of these weekly and monthly reports [are significant].”

While President Trump’s immigration policy is ostensibly designed to prevent terrorists from entering the US and keep Americans safe, since President Trump’s election, there has been a dramatic increase in reports of hate crimes across the US. The recent shooting of Srinivas Kuchibhotla and Alok Madasani, two immigrants from India, by Adam Purinton, has led many to suggest that President Trump’s anti-immigrant policy and rhetoric has produced a climate of hostility toward foreigners in the US. Purinton, who was thrown out of the bar where Kuchibhotla and Madasani were drinking after he called them ethnic slurs and suggested that they did not belong in the United States, returned a short time later and fired on the two men, as well as another man who tried to apprehend the gunman. The attack, which killed Kuchibhotla, is being investigated as a possible hate crime. The gunman reportedly said later that he believed he had killed two citizens of Iran, one of the seven-predominately Muslim countries included in Trump’s travel ban.

The White House strongly rejected the idea of a link between the shooting and the administration’s anti-immigrant language and policy. Madasani, who was injured but survived the attack, calls the shooting “an isolated incident that doesn’t reflect the true spirit of Kansas, the Midwest and the United States.”

ABC News: "Without immigrants, the US economy would be a 'disaster,' experts say"

Economic experts tell ABC News that the US economy and workforce would be a "disaster" without immigrants. "If all immigrants were just to disappear from the US workforce tomorrow, that would have a tremendous negative impact on the economy," Daniel Costa, the director of immigration law and policy research at the Economic Policy Institute, an economic research think tank based in Washington, D.C., tells ABC News. "Immigrants are overrepresented in a lot of occupations in both low- and high-skilled jobs. You'd feel an impact and loss in many, many different occupations and industries, from construction and landscape to finance and IT."

Although US-born workers could fill some of those jobs, Costa claims, there would nevertheless be large gaps in several sectors that would cause a decline in the economy. Immigrants earned $1.3 trillion and contributed $105 billion in state and local taxes and nearly $224 billion in federal taxes in 2014, according to the Partnership for a New American Economy and based on analysis of the US Census Bureau's latest American Community Survey. In 2014 immigrants had almost $927 billion in consumer spending power. "Immigrants are a very vital part of what makes the US economy work," Jeremy Robbins, the executive director of the Partnership for a New American Economy, a group of 500 pro-immigrant Republican, Democratic, and independent mayors and business leaders, tells ABC News. "They help drive every single sector and industry in this economy,” he says. “If you look at the great companies driving the US as an innovation hub, you'll see that a lot of companies were started by immigrants or the child of immigrants, like Apple and Google,” he notes, referring to Apple co-founder Steve Jobs, whose biological father was a Syrian refugee, as well as Google (now Alphabet) co-founder Sergey Brin, who was born in Moscow.

Although immigrants make up about thirteen percent of the US population, they contribute almost fifteen percent of the country's economic output, according to an Economic Policy Institute 2014 report. "Immigrants have an outsized role in US economic output because they are disproportionately likely to be working and are concentrated among prime working ages," the EPI report says. "Moreover, many immigrants are business owners. In fact, the share of immigrant workers who own small businesses is slightly higher than the comparable share among US-born workers." David Kallick, the director of the Immigration Research Initiative at the Fiscal Policy Institute, says that immigrants do not “steal” jobs from Americans. “It may seem surprising, but study after study has shown that immigration actually improves wages to US-born workers and provides more job opportunities for US-born workers," he tells ABC News. "The fact is that immigrants often push US-born workers up in the labor market rather than out of it." Kallick adds that studies he has done found that "where there's economic growth there's immigration, and where there's not much economic growth, there's not much immigration." 

Meg Wiehe, the director of programs for the Institute on Taxation and Economic Policy, says undocumented immigrants also contribute a substantial amount in taxes. "Undocumented immigrants contributed more than $11.6 billion in state and local taxes each year. And if the estimated 11 million undocumented immigrants here were given a pathway to citizenship or legal residential status, those tax contributions could rise by nearly $2 billion." Additionally, she says, the “vast majority” of undocumented immigrants pay income tax using the I-10 income tax return form.

To raise awareness and demonstrate the impact of immigrants in the American economy, many cities across the US last week held “A Day Without Immigrants” protests, when immigrants refused to go to work, attend school, and shop. The protests were held in response to President Trump’s anti-immigrant executive orders to increase deportations of undocumented immigrants, build a wall along the US-Mexico border, and conduct "extreme vetting" of immigrants from seven predominately Muslim countries. Hundreds of business owners in Washington, D.C., Austin, Texas, Boston, Philadelphia, and other cities participated. But not everyone supported the protesters. Jim Serowski, founder of JVS Masonry in Commerce City, Colorado, fired his foreman and thirty bricklayers who failed to show up for work. "If you're going to stand up for what you believe in, you have to be willing to pay the price," he tells CNN. Others feel that support for undocumented immigrants is misplaced.  “Of course, nobody wants to do without immigrants—they are what made America,” Sarah Crysl Akhtar from New Hampshire tells the New York Times. “But there is a difference between legal immigrants and illegal aliens.” The latter, she says, “bring down the quality of life for everyone.”

While the economic impact of the Day Without Immigrants protest is not clear, many recent anti-Trump boycotts and protests have raised awareness and put pressure on lawmakers and the Trump administration. For Andy Shallal, an Iraqi-American entrepreneur who closed all six locations of his D.C.-area performance venue chain Busboys and Poets, it was a chance to call for "humanistic" immigration reform. "I want to make sure that immigrants, such as myself and others, don’t live in fear," he says. He adds: "There are times when standing on the sidelines is not an option. This is one of those times."

The Guardian: “Backlash against Trump migration order grows as Obama issues warning”

President Donald Trump’s executive order signed last Friday halting the US refugee program and banning travel from seven Muslim-majority countries has led to chaos at airports, legal challenges, protests across the country, and worldwide condemnation. It has even led to former President Barack Obama weighing in, warning that “American values are at stake.”

The travel ban was immediately challenged in courts, and on Saturday night, a federal judge granted an emergency stay for citizens of the affected countries who had already arrived in the US as well as those in transit and who hold valid visas, ruling that they were allowed to enter the US. The federal judge in the Eastern District of New York ruled on a habeas corpus petition filed by the ACLU on behalf of Hameed Khalid Darweesh and Sameer Abdulkhaleq Alshawi, who were both denied entry and detained after landing at JFK airport. Darweesh worked in Iraq as an interpreter and engineer for the US military for ten years and had been granted a visa after extensive background checks. Alshawi had been granted a visa to join his wife and son who are already permanent US residents.

The executive order affected numerous travelers and refugees, many who had waited years and undergone extensive vetting to come to the US. The order also affected a grandmother visiting her family in the US, an Iranian medical researcher, and an MIT student, among many others. A second temporary stay, more broad than the New York order, was also issued by two federal judges in Boston on Sunday. Their ruling puts a seven-day hold on enforcement of Trump's executive order, and states that no approved refugee, holder of a valid visa, lawful permanent resident or traveler from one of the seven majority-Muslim nations affected by the ban can be detained or removed anywhere in the US for the next seven days due solely to Trump's executive order.

On Monday, acting Attorney General Sally Q. Yates, a holdover from the Obama administration, ordered the Justice Department not to defend President Trump’s executive order in court. “I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right,” Ms. Yates wrote in a letter to Justice Department lawyers. “At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.” Although this decision was mainly symbolic—she was immediately fired by President Trump and Dana J. Boente, the US attorney for the Eastern District of Virginia who was appointed to serve as attorney general until Congress acts to confirm Senator Jeff Sessions, rescinded her order—it illustrates the divide at the Justice Department as well as the haphazard nature in which the executive order was signed. Officials at the Department of Homeland Security were only permitted to view the order on Friday.

As demonstrations, legal challenges, and criticism mount—including from the business community—the White House continues to defend the order, insisting that only 109 travellers—a figure that is not entirely accurate—had been “inconvenienced” over the weekend. Within the State Department, a draft memo circulated around foreign missions strongly opposed to Trump’s executive order. “We are better than this ban,” the memo says, arguing that the ban will backfire and make the US less safe from terrorism. The draft memo states: “A policy which closes our doors to over 200 million legitimate travelers in the hopes of preventing a small number of travelers who intend to harm Americans from using the visa system to enter the United States will not achieve its aim of making our country safer. Moreover, such a policy runs counter to core American values of nondiscrimination, fair play and extending a warm welcome to foreign visitors and immigrants.”

After a weekend of confusion, the Department of Homeland Security is now saying that the order does not apply to lawful permanent residents noting that the “entry of lawful permanent residents is in the national interest. Accordingly, absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.” UK Foreign Secretary Boris Johnson reported on Sunday night that he had received assurances from the White House that the “Muslim ban” would only apply to UK dual nationals traveling from the listed countries directly to the US; however, the US Embassy in London contradicted this claim noting that no visas would be issued to any dual nationals of the countries listed under the “Muslim ban,” though this page has since been taken down.

"It's working out very nicely," President Trump told reporters Saturday. "You see it at the airports. You see it all over. It's working out very nicely and we're going to have a very, very strict ban, and we're going to have extreme vetting, which we should have had in this country for many years." Adam Schiff, the senior Democrat on the House Intelligence Committee, strongly disagrees, telling CNN. "This order contravenes the principles of religious liberty, equality, and compassion that our nation was founded upon in its discriminatory impact of Muslims. It also plays into the Al Qaeda and ISIS narrative that the West is no place for Muslims and that we are engaged in a war of civilizations."

The Council on American-Islamic Relations (CAIR) and the attorney general of Washington State each filed lawsuits on Monday against President Trump’s executive order, calling it an “an unconstitutional religious test.” We will provide additional updates as we receive them.

UPDATE FEBRUARY 4, 2017: A judge in Seattle ordered a nationwide halt on Friday to the travel ban after a Boston court refused to extend a stay. The ruling from the Seattle judge, James Robart of the Federal District Court for the Western District of Washington, an appointee of President George W. Bush, is the most far-reaching ruling to date, though courts around the country have stayed certain aspects of President Trump's travel ban.

The federal government was “arguing that we have to protect the US from individuals from these countries, and there’s no support for that,” Judge Robart said in his decision. The judge's temporary ruling bars the administration from enforcing two parts of President Trump’s order: the ninety-day suspension of entry into the US of individuals from seven Muslim-majority countries—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen—and the order's limits on accepting refugees, including “any action that prioritizes the refugee claims of certain religious minorities.”

Initially calling the ruling "outrageous," the White House late Friday issued a revised statement saying it would seek an emergency halt to the judge’s stay to restore the president’s “lawful and appropriate" order. Earlier this week the State Department said 60,000 visas had been revoked. A State Department official tells CNN that the department has "reversed the cancellation of visas that were provisionally revoked following the Trump administration's travel ban—so long as those visas were not stamped or marked as canceled." The Department of Homeland Security also said Saturday it has suspended actions to implement President Trump's executive immigration order. Nationals of the affected seven-Muslim majority countries who intend on traveling outside the US or to the US should consult an experienced immigration attorney. We will continue to provide updates as we receive them.

UPDATE FEBRUARY 15, 2017: A federal judge in Virginia granted a preliminary injunction barring the Trump administration from implementing its travel ban in Virginia, adding another judicial ruling to the previously existing ones challenging the ban's constitutionality. This particular ruling is significant because US District Judge Leonie Brinkema found that since an unconstitutional religious bias is at the root of the travel ban, it violates First Amendment prohibitions on favoring one religion over another.

In her twenty-two-page ruling, Brinkema writes that the "president himself acknowledged the conceptual link between a Muslim ban and the EO (executive order)." She further notes that the president's executive authority is nevertheless limited by the Constitution. "Every presidential action must still comply with the limits set by Congress' delegation of power and the constraints of the Constitution, including Bill of Rights." A Justice Department spokeswoman did not return an email to the AP seeking comment about the ruling, although President Trump has indicated that he may issue a new executive order to replace the one being challenged in court.