Attorneys at Journey’s End Refugee Services—a local non-profit that provides immigration legal services—have witnessed a burgeoning number of individuals seeking citizenship to protect themselves against what they perceive as a threat in Donald Trump.

While not all of those concrned qualify for citizenship, JERS staff attorney Jill Nowak believes they are reacting to the political rhetoric generated by the Republican presidential candidate.  

“As part of my job,” she says, “I ask why these individuals are interested in obtaining citizenship and more and more it seems it’s out of the desire to vote.”  Nowak explains that they are also hoping to protect themselves from being indiscriminately removed from the United States.

“These individuals include those who are undocumented, but also those with legal status here,” she notes.  

In regards to immigration, a major rallying point for the Trump campaign has been to bolster immigration enforcement, secure United States borders, and promptly remove criminal aliens.  Observers and immigrants alike have taken note of the portrayal of immigrants as economic threats for American workers, criminal threats to society, or as potential terrorists.  

The president’s role in immigration

In regards to the fears of these non-citizen residents, two important factors to consider are the scope of the president’s power and the due process rights that everyone on US soil retains.  

University at Buffalo law professor Nicole Hallett points out that the president does not enact immigration law, but rather is responsible for “enforcing immigration policy” and directing it.

“The President can set priorities to prevent the system from being overwhelmed,” Hallett notes. This would include whether to focus more heavily prosecuting aliens (i.e. non-citizens) who have committed serious crimes, versus those who are in the United States unlawfully, for example.  

By setting priorities, the president is able to more efficiently utilize and focus the limited resources of the Department of Homeland Security (DHS) and the Department of Justice (DOJ).  Note that both the DHS and the DOJ are under the direct authority of the President.  

Under the Obama administration, this memorandum is called the Priority Enforcement Program (PEP) and has established criminal offenders as a top priority for enforcement.  According to the Pew Research center, the Obama administration deported 168,000 criminal aliens in 2014, the most recent year for available statistics.  

Those responsible for apprehending these priority aliens are part of Immigration and Customs Enforcement (ICE).  They are also tasked with putting these individuals into removal proceedings, and then carrying out deportations, depending on the outcome of the individual’s hearing in the Immigration Court (IC).  

While the Trump campaign has certainly discussed creating a “deportation force,” Hallett notes that this is already the function of ICE.  And in regards to his claims of increasing the number of ICE agents threefold, this would conceivably require greater budgetary funding, which Hallett notes, “Congress alone is responsible for determining.”  

Those fearful of indiscriminate deportation should take some solace in the fact that regardless of their legal status in the US, they retain legal rights. “Everyone in the US gets some due process and cannot be summarily deported,” Hallett explains. She maintains that anyone residing in the US and facing removal—be it for a criminal violation or the civil violation of residing here unlawfully—would be afforded the right to a hearing, which would determine whether or not that individual meets the criteria for removal.  

These grounds that determine whether or not a person is actually deportable were written by Congress in the Immigration and Nationality Act (INA) of 1996, which according to University at Buffalo Law Professor Rick Su, “greatly expanded categories of crimes… that make someone deportable.”

Even if a president were to entirely disregard the INA and order that DHS and the DOJ remove all aliens—whether convicted of a crime or not—Hallett points out that there is a check in place.

While these individuals would initially have their removal hearing with a DOJ judge, all are afforded the right to an appeal, which would eventually enter into the US Court of Appeals. These federal courts are presided over by judges who are not directed by the executive branch and so would be immune from the president’s authority.  

Trump’s plan as described on his website to “move criminal aliens out day one in joint operations with local, state, and federal law enforcement agencies,” is virtually impossible to lawfully achieve.

Asylum and Refugee programs

The president has greater unilateral authority in regards to the refugee and asylum programs in the US.

According to Hallett, the president alone is responsible for setting the numbers of refugees admitted here and from which countries.  For example, President Obama determined the ceiling number of refugees admitted in 2015, which was 70,000. In 2016, he also decided to include an additional 10,000 as the ceiling for the current fiscal year is 85,000.  

If the president decided that refugees posed a significant security threat, for example, it is conceivable that the continued participation in the refugee resettlement program could be greatly reduced or be effectively terminated by the president.  

This would require the president to end American participation in the 1951 Refugee Convention treaty with the United Nations, which in Hallett’s view, “would have terrible consequences. It could lead to other countries pulling out and the entire refugee system could collapse.” As Hallett explains, this decision would not have bearing for those refugees already living in the United States, but rather those awaiting resettlement here, who are living abroad.  

In addition, the president also retains tremendous authority in the adjudication of the asylum process here. Asylum seekers—unlike their refugee counterparts—must prove they meet the UN criteria for a refugee after they have entered the US. These legal proceedings begin here, are adjudicated by DHS or DOJ officials, and are “entirely discretionary,” according to Hallett.

Were the president to decide to end the provision of asylum, those currently in these legal proceedings could be blocked from obtaining asylum, and those who had already obtained asylum but and had not yet obtained their Green Card could be stripped of their “asylee” status.  

Hallett explains that current treaty would prevent the US from returning these individuals back to their home country, however, even if their status were to be revoked. In her view, “while asylum seekers could lose access to an array of social benefits and the road to a Green Card and ultimately US citizenship, they would not necessarily be removed to their country.”  

This would be an unprecedented policy shift, the logistics of which Hallett is unsure of: “I don’t think we know how this would work, because it’s so radical.”

All politics is local

While there are those that remain fearful of what a president Trump would do—or attempt—in office, some believe that his greatest impact on these non-citizen residents may be his rhetoric and the political climate he has inspired. This would not require ballot counting or constitutional authority to take effect.

Throughout his campaign, many advocates and immigrants have construed his message as anti-immigrant, and have taken offense at the ways many immigrants are portrayed. To Professor Su, this attitude towards immigrants is not new. “It has existed in the American imagination for some time, going back to the Italians, Irish.”

These changes, in Su’s view, are also not isolated to the US but represent a broader trend throughout the world that is reactive towards globalism, and “based in populist right wing, anti-immigrant turns. It’s an anti-cosmopolitan return to tribalism, where we retreat to our own corners.”

On Trump’s campaign website explaining his immigration platform, many of the statistics he cites seem to focus on the number of crimes committed by non-citizens here.  However, Su believes this to be an assumption: “the idea of the immigrant is hypothetical. ‘If only if we didn’t allow this person in, this wouldn’t have happened.’” In his view, “this false agency or false control is a way of dealing with a problem,” but is largely confined to discussion about immigration.  

While Su maintains that whichever candidate is chosen will signal a new political direction, he points out that rhetoric alone can define how a country responds to immigrants at the community level.  “Whether an immigrant has a legal right to be here is different than if the community believes they should be here.”

Jill Nowak has already seen this take shape, particularly with Muslim refugees originating from countries such as such as Iraq, Afghanistan, and Syria, which have been questioned by state and federal politicians for potential terrorist risks. She says these individuals, “feel that people support Trump and fear the backlash from the community they live in.”

While these non-citizens are not allowed to vote this November, many may be too fearful to publicly express their opinions in other ways, according to Nowak. “They’re afraid to talk to me in a closed door setting where there’s attorney-client privilege,” she says, “So organizing publicly is not a priority for them. They don’t want to make themselves visible.”  

As to what immigration changes are actually at stake remains hypothetical for now. Yet Hallett notes that she and her spouse are not taking any risks.

“My husband is a Canadian citizen and has been living here with a Green Card. But he’s finally going to naturalize, and he’s a law professor. It’s not just refugees and immigrants that can be affected.”