President Trump’s immigration ban inflicts devastating consequences even on the immigrant groups who appeared to be spared by it. Trump’s executive order to ban immigrants from six Muslim-majority countries—essentially a Muslim ban—is intended, he says, to make America safer and reduce the number of illegal immigrants in the country. But the steps he’s taken will actually have the opposite effect, increasing the pool of undocumented immigrants and creating a vicious cycle of illegal immigration. Here’s why.
Deportation is a long process, not a quick one-time act. For detainees, the experience of deportation doesn’t just mean being put on a plane and dropped off in their home country. On the contrary, when immigrants from Muslim-majority nations arrive in the U.S., they are placed in detention—essentially jail cells—to await their fate. According to the ACLU the conditions in those detention facilities are deplorable. The National Immigration Law Center has compiled countless reports recounting physical and verbal abuse that immigrants endure while detained. Detainees have to wait in detention facilities because even non-citizens have constitutional rights—specifically the Fifth Amendment (the right to not incriminate oneself) and the Sixth Amendment (the right to trial).
All immigrants, regardless of where they are from, have the right to due process as long as they are on American soil. Once someone lands in the U.S., it is unconstitutional to simply send him or her back without a trial. Ironically, the need to honor their civil liberties means detainees are held longer than they would be if they were summarily sent home. And most don’t know how to navigate immigration law and policy and find an attorney.
Due to Trump’s Muslim ban, federal courts, immigration courts, Homeland Security, and United States Citizenship and Immigration Services (USCIS) are now inundated with removal cases. The law requires that each case be reviewed on an individual basis; failing to do so would be unlawful and unfair.
Meanwhile, immigration advocacy groups, activists, and attorneys are coming to the aid of those who are facing immediate removal—as well they should. But our national focus on those whose cases are most dire means that other immigrants in the pipeline may fall off the radar and lose their citizenship status, thereby increasing the population of undocumented immigrants beyond the 12 million current cases. This will create a backlog of people who want to adjust their status but can’t. This outcome will be extremely damaging to our economy and to our immigration program.
Why would there be a backlog?
Not only do we lack sufficient immigration attorneys to deal with the thousands of existing backlogged cases, but of the attorneys we do have, not all are equipped to handle the complexity of removal proceedings. I was myself in removal proceedings for seven years of my life, from 2000 to 2007, partly because my legal council was so overwhelmed with cases that he made egregious mistakes with my case.
When I eventually hired a new attorney to take over my case, the first thing she did was read the brief my original attorney had written. “This is one of the worst briefs I have ever seen put together,” she said. “There are spelling errors, factual evidence that should have been concluded but wasn’t. I am so sorry Martine.”
We sat across from each other in a conference room large enough to spread four boxes of my files across the the table and floor. It was no wonder that the Board of Immigration Appeals remanded my case to the judge to make a final decision with such a poorly crafted brief. My first attorney’s incompetence in my case prolonged the outcome of my hearings and trials and left me in limbo for almost a decade.
For as many reputable immigration attorneys out there who want to make a difference, there are also illegitimate attorneys who see this as an opportunity to gouge vulnerable people for money. For an immigrant who is in dire straits, it’s not always obvious how to distinguish the good from the crooked. Today, immigration attorneys affiliated with reputable establishments such as the American Immigration Lawyer’s Association (AILA) and the American Civil Liberties Union (ACLU) are better equipped to monitor and work with internal arrivals who are being held in custody as they arrive. As it happens, this is the same group of lawyers and advocates the rest of the immigration population need to secure their lawful status—and if they’re working to help legal non-citizens at the airports, it means they’re not doing their usual work dealing with the backlog.
Who Would be Part of the Backlog?
In 2016, there were 13 million legal non-citizens of the United States, a number that includes Lawful Permanent Residents (LPRs) and individuals on temporary visas. On average about 6 million foreign nationals obtain Lawful Permanent Residence (LPR) every year, which means they became green card holders.
From a constitutional perspective, being a lawful permanent resident is the next best civilian privilege to being a U.S. citizen. LPRs can apply for any job in the U.S. that is not restricted to U.S. citizens and are not tied to any type of employment or employer in order to remain in the country. These individuals are predominantly coming from India, China, and Mexico legally, on student visas, being invited by a permanent resident relative, sponsored by employers, or entering as refugees or asylees or through a green card lottery.
The process of applying for permanent resident status sometimes requires attorney representation to petition and fill out paperwork, and always requires USCIS to process the application and conduct biometric screenings, including a background check, a process that can take months. As long as these groups are being pulled to help new entries who are being held in custody at airports due to Trump’s Muslim ban, this population of 6 million are placed in a precarious situation, potentially unable to maintain lawful status and secure a green card even though the government has already collected the $1100 fee required to file the form.
The remaining 7 million legal non-citizens are on temporary visas. According to the Department of Homeland Security (DHS), in 2015 85% of people on temporary visas overstayed their visa, of which Canada, Mexico, and Brazil accounted for 60%.
In order to extend their visas, these individuals need job sponsorship, legal representation, and at the very least must appeal their cases to USCIS. This is the same USCIS that is processing the deportation of the six categories of Muslims named in Trump’s executive order, processing paperwork on behalf of the 6 million LPR candidates, and, let’s not forget, managing the cases of the 12 million undocumented immigrants reported to exist in the U.S. Attorneys are doing the same, and even the best attorneys can only manage so many cases at one time.
The Muslim ban is xenophobic and nativist, but this is stating the obvious. More than that, it pillages the moral fabric of America. It will end up displacing more of our immigrant population, the embodiment of the American dream. It serves no one and harms all of us.