What Are the Implications of the 2016 Election for DACA, Deportation, and Immigration?

BY REBECCA GALEMBA, PHD AND CHRISTINA BROWN, ESQ.

Key Takeaways

  • The Trump agenda for immigration has intensified what is already a precarious situation for immigrants. It seems unlikely, costly, and politically difficult to deport 11 million undocumented immigrants residing in the United States, but the incoming administration is also unpredictable.
  • It is unclear whether Trump intends to revoke DACA and associated work permits or allow them to expire within their timespans.
  • Advice for those with DACA: Renew if your DACA is expiring. Renewal could help individuals extend their employment eligibility if the Trump administration decides to allow DACA protections to expire rather than revoke them.It is not recommended for first-time applicants to apply for DACA. First-time DACA applicants, or those considering travel on advance parole, should contact an immigration attorney.
  • Universities and immigrant advocates in the community can:
    • refuse to cooperate with Immigration and Customs Enforcement ICE within the scope of the law;
    • support inclusive and safe environments and denounce hate crimes;
    • provide, or facilitate access to, mental health and legal supports for DACA and undocumented students;
    • train faculty and staff on the resources available to DACA and undocumented students; and
    • convene academic, legal, and community resources to educate the public and create coalitions to support immigrant advocacy and organizing efforts.

Overview

The Trump platform articulated a draconian approach to immigration by proposing a complete border wall, mass deportation, and the disbanding of the Deferred Action for Childhood Arrivals (DACA) program. While the unpredictability of the next administration has sowed fear and uncertainty amongst the public, we can prepare through information, research, coalition building, and advocacy. This Quickfacts can be a resource to DACA recipients and undocumented students and their allies and can also inform the public debate regarding immigration and its conflation with criminality. An understanding of the effects of past hardline approaches to immigration can also be utilized to counter the prevailing discourse.

Criminalization of Immigration

The Colorado Context

In 2006, Colorado passed one of the nation’s first “show me your papers” laws, SB 90, which helped pave the way for Arizona’s notorious SB 1070. Bipartisan stakeholders in Colorado successfully lobbied to repeal this law in 2013, noting that it was expensive, bred community distrust of the police, and undermined local and public safety. In 2013, Colorado became one of the first states to repeal an anti-immigration law. In the spring of 2013, counties in Colorado were also at the forefront of the movement to opt out of issuing Immigration and Customs Enforcement (ICE) detainers for arrested immigrants, realizing that these detentions risked violating critical civil liberties and authorizing racial profiling. Recently, in response to public fears and uncertainty regarding the Trump administration’s immigration agenda, the Denver and Aurora police reiterated that they will not act as immigration agents or enforce immigration laws since immigration falls under federal jurisdiction Despite these pro-immigrant movements, Colorado still participated in the federal Secure Communities program until it was disbanded in 2014. Under this program, local law enforcement collaborated with ICE by sharing information regarding those arrested if they suspected them of being undocumented.

Priority Enforcement?

President Obama discontinued the Secure Communities program in 2014, phasing in the Priority Enforcement Program (PEP), which was announced on November 20, 2014. According to the U.S. government, the purpose of PEP is to prioritize removal of certain populations of immigrants, such as felons and other immigrants with serious criminal convictions, rather than families and workers. The first priority removal group under PEP includes threats to national security, felons, and those attempting to cross the United States border without authorization. The second priority removal group under PEP includes “criminal” immigrants (with three or more misdemeanors or a significant misdemeanor, such as driving under the influence) and recent entrants to the U.S. The third and final priority removal group includes immigrants with a final order of removal as of January 1, 2014. However, recent reports document that rather than focusing on high priority criminals, that half of all “holds” were placed on immigrants who had been arrested, but had no convictions. A records request from the Transactional Records Access Clearinghouse at Syracuse University revealed that only one fourth of holds were for serious offenders; the most frequent conviction was driving under the influence.

President Obama deported more immigrants during his presidency than any preceding administrations. Since 2014, Obama has also targeted women and children fleeing violence in Central America for removal, most of whom have no criminal record. Removal numbers decreased slightly in the last three years, as Obama attempted to pass executive orders to expand DACA and to provide temporary protections for undocumented parents (DAPA). However, the United States Supreme Court’s split decision on DACA expansion and DAPA prevented implementation.

Mass Deportation, a Border Wall, and Other Hardline Policies Would be Ineffective

Due to the high numbers of deportations under Obama, some immigration scholars say that President-elect Trump need not create a deportation force, as it is already in operation. By 2011, deportations had increased by ten times 1991 levels, as Tanya Golash-Boza reports in her 2015 book Deported: Immigrant Policing, Disposable Labor and Global Capitalism . Golash-Boza also notes that deporting 11 million undocumented immigrants would be exceedingly costly and likely impossible. A mass deportation would cost the U.S. over $114 billion, which calculates to more than $10,000 to find, detain, and deport each unauthorized immigrant, in addition to much higher overall economic losses. Mass deportation does not seek to deport all those who are eligible, but works to instill fear and compliance among vulnerable immigrants. Total deportation is not only impossible due to the sheer magnitude of the task, but also because it could also only be accomplished through relying on local law enforcement officials (which many are now reluctant to do), authorizing racial profiling, and undermining due process and basic individual rights--all values to which the U.S. stands committed.

Other enforcement solutions offered by the Trump campaign will be similarly ineffective. As Peter Andreas notes, the majority of the border wall about which Trump speaks already exists; however, he will attempt to use any visible addition to symbolically claim it successful. Yet research by scholars such as Peter Andreas, Joseph Nevins, Doug Massey, and Wayne Cornelius demonstrates that deportation, walls, and the escalation of border enforcement complex over the past twenty years has done little to halt crossings or deter immigrants. In 2012, the government spent $18 billion on immigration enforcement, which was higher than all other federal law enforcement agencies put together. Government officials continue to push for more enforcement despite evidence that migration is more responsive to economic, demographic, and social dynamics in both sending and receiving locations, as well as historical ties. For example, ironically, border crossings from Mexico have been at record low, or net zero, for the last few years, largely due to demographic factors. Escalating enforcement, on the other hand, has led to an increase in migrant deaths, exploitation of immigrant workers, increased corruption and smuggling fees, and to a more permanently settled population of undocumented immigrants. As crossing became most expensive and risky, immigrants turned circular flows into prolonged, and sometimes, permanent, stays.

Despite Evidence, Immigrants are Viewed and Treated as Criminals

A hardline on immigration and conflating immigrants with criminals, although articulated particularly brazenly by Trump on the campaign trail, has already become normalized despite research that shows that immigrants tend to have lower levels of criminality than the native-born U.S. population. As scholars Dowling and Inda note, immigration has been increasingly governed through crime, which refers to the convergence of immigration law and the criminal justice system so that police officers assist in immigration enforcement. Undocumented immigrants, and sometimes permanent residents, who are convicted of a crime can be subject to deportation after completing their sentences. Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, the definition of criminality has expanded to place more immigrants, including permanent residents, at risk of removal despite shifts in political rhetoric. After the terrorist attacks of September 11, 2001, the label of criminality merged with terrorism to render immigrants threats to public and national security. Operation Streamline, implemented in 2005, increasingly criminalized migration by subjecting border crossers who illegally enter and re-enter to criminal prosecution and channeling them into the criminal justice system. Operation Streamline made illegal entry a misdemeanor with a penalty of up to 6 months in prison and illegal re-entry a felony carrying the possibility of a 20-year prison sentence. The increasing criminalization of immigration must be taken into account to counter the narrative of targeting “serious criminals”; according to the American Immigration Council, immigration-related crimes constituted half of all federal prosecutions in 2012.

This apparent rise in immigration-related crimes is not due to a rise in criminality, but rather an expanding definition of the types of crimes that subject a non-citizen to detention and deportation. Of the 200,000 “criminal alien” deportations in 2012, 24% were for immigration-related crimes such as illegal entry, 23% were for traffic violations, 21% for drugs, and 10% for actual violent crimes such as robbery and assault, indicating a broadening of what is considered “criminal”. More than half of those deported had no criminal convictions. Minor crimes for citizens (such as that falsifying social security records, traffic offenses, or minor drug charges,) can subject an immigrant to prison time and deportation. So when the public discourse argues in favor of deporting criminals and not families, we must question the expanding definition of criminality, to whom it is applied, and what interests it serves.

Governing migration through crime, as Inda and Dowling state, has not reduced undocumented immigration or crime, but has instead created a more fearful immigrant population and expanded the private prison industry and its profits at the expense of public tax dollars and basic human rights. The prison industry relies increasingly on immigrants to fill bed quota and earn profits through detention as immigrants await court hearings or removal and a multiplication of charges that carry a federal prison sentence. An immigrant detention bed quota of 34,000 immigrants a day costs taxpayers $2 billion per year to the benefit of the private prison industry while it incentivizes ICE to pursue detention over less expensive alternatives. In March of 2016, Representatives Ted Deutch (D-FL) and Bill Foster (D-IL) began a Congressional effort to attempt to lift the detention quota for fiscal year 2017.

The Future of DACA

The DACA program is an administrative program that was announced by the Department of Homeland Security on June 15, 2012. Given the failure of Congress to pass a bill such as the more expansive DREAM Act or comprehensive immigration reform, DACA is able to administratively and temporarily protect those who came to the U.S. without documents as young children. It enables these youth who meet certain criteria to receive temporary protection from deportation and the possibly of work authorization.

It is unclear whether Trump intends to revoke DACA approvals and the associated work permits or let them expire in their respective time periods, since they need to be renewed every two years. As of spring 2016, U.S. Citizenship and Immigration Services (USCIS) had approved 728,285 DACA applications.

Under the current program, applicants may request DACA if they:

  • resided continuously in the United States since June 15, 2007;
  • came to U.S. before reaching the age of 16;
  • were under 31 years of age on June 15, 2012;
  • were physically present in the U.S. without lawful status on June 15, 2012;
  • are at least 15 years old (or are currently in removal proceedings if under the age of 15);
  • are currently enrolled in school, or have a high school diploma or general education development (GED) certificate, or are honorably discharged from U.S. Coast Guard or Armed Forces; and
  • have no convictions for a felony or a significant misdemeanor, have no more than three convictions for non-significant misdemeanors, and are not a threat to national and public security.

DACA was never designed to be a path toward citizenship, but rather offered “deferred action,” or a protection from removal, for two year periods with the possibility of renewal. DACA enables young people who qualify to request work authorization, travel within the U.S., and apply for advance parole to request foreign travel for educational, humanitarian, emergency, or business purposes. Decisions by USCIS to grant DACA could not be appealed, but those cases which were denied were not referred to ICE except in cases of fraud, serious criminal offenses, or threats to national and public security.

Questions regarding DACA

Both United We Dream and the Immigrant Legal Resource Center (ILRC) provide useful advice and talking points on DACA for current “DACAmented” individuals and the undocumented. DACA will remain in effect until the end of the Obama administration. Both sources recommend renewal if a DACA approval is expiring, but do not advise first-time DACA applicants to apply at this time. Similarly, these organizations do not advise new advance parole applications for travel due to the unpredictability of the incoming administration, as well as application processing times. First-time DACA applicants, or those considering travel on advance parole, should contact an immigration attorney.

1. Will DACA protections be suspended? President-elect Trump disparaged DACA throughout his candidacy, arguing that such protections overstep presidential authority and must be legislated through Congress. As an administrative order, DACA would be easy to repeal, but a repeal is also potentially quite politically unpopular along both sides of the aisle. The IRLC points to the fact that  ending DACA would be costly; it could decrease contributions to Social Security and Medicare by $24.6 billion over ten years and lead businesses to incur high turnover costs. In fact, bipartisan senators presented the BRIDGE (Bar Removal of Individuals who Dream and Grow our Economy) Act, in early December to extend protections to DACA youth. The bill will have to be re-introduced in the Senate in January 2017.

2. Will those who currently benefit from DACA be deported? Many DACA youth fear that since they have registered with the government that they are vulnerable for removal efforts. However, most experts believe that DACAmented individuals will not be explicitly targeted for removal, since no other administrative program has been utilized to enact mass deportation. ILRC cautions that this administration appears to be more unpredictable than prior administration, but points out that it would be extremely costly to enact such mass deportation measures.

3. Should new applicants file for DACA and should current DACA recipients renew? Due to backlogs, processing fees, and the unpredictability of the new administration, the ILRC and United We Dream do not currently advise first-time applications for DACA. These organizations also note that advance parole applications, which are an option to enable DACAmented youth to travel internationally, may be more challenging due to long processing times. Individuals who have been approved for advance paroles can travel as long as they return prior to January 20, 2017. New applications for advance parole are not recommended due to processing times and the unpredictability of the incoming administration. Individuals who encounter any problems returning can contact advocacy@unitedwedream.org or an immigration attorney. Despite public fears, renewal applications for DACA should not pose additional risks. Individuals who have received DACA approval in the past are already registered with the government. Additionally, DACA renewal could help individuals extend their employment eligibility if the Trump administration decides to allow DACA and associated work permits to expire rather than revoke them. Individuals with DACA are encouraged to renew if they are up for renewal, but fees for filing the renewal application will go up to $495 after December 23, 2016. There are some options to assist with grants and loans through the Mexican consulate. The ILRC also recommends the Mission Asset Fund and the Self-Help Federal Credit Unionfor assistance.

Advice for Current DACA Youth

The ILRC advises DACAmented youth to seek out legal services to verify if they are eligible to adjust their status under other measures. They provide a link to pro bono or reduced cost legal services. Advocates should encourage universities to help provide assistance or access to legal services for students. The ILRC also created “know your rights” cards to help individuals be cognizant of their rights, know their options, and provide information about possible fraudulent operators. Also see United We Dream for helpful resources.

What Can Universities and Communities Do?

In response to threats to the DACA program, and the vulnerable position of youth with temporary protection from removal, college campuses and churches have been circulating petitions and working with lawyers and activists to declare sanctuary campuses and churches. While the interpretation over what constitutes a sanctuary varies, most petitions center around refusing to cooperate with ICE, assisting DACA and undocumented students within the scope of the law, refusing to “voluntarily assist” efforts by the federal government to detain and deport students (for an example, see Wesleyan University). Over 140 sanctuary petitions have circulated and more than 450 university presidents and chancellors, including Chancellor Chopp at the University of Denver, have signed statements in support of maintaining and expanding DACA. Efforts are currently underway at the University of Denver to present the Chancellor with specific requests to support undocumented and DACA students.

As of December 2016, at least 28 schools have declared themselves to be sanctuaries, but others have stopped short of utilizing the term sanctuary. Some campus proposals have also asked for more substantive support options, including mental health and legal services for students on campus, providing fellowships and funds, and concrete alternatives to help students complete their degrees if they are detained or deported. Yet it still remains unclear to what extent declaring a sanctuary status can enable universities to prevent deportation. However, universities can take a stand within the scope of the law by refusing to allow immigration of police officers to enter their campuses without possessing a subpoena or court order The American Association of University Professors (AAUP) has also taken a stance by passing a resolution to condemn hate crimes and support the campus sanctuary movement. While acknowledging that universities must act within the law, they recommend that universities make a concerted effort to protect student privacy and to not collect or share information that could reveal a student’s immigration status “unless so ordered by a court or law.” According to the AAUP, since immigration law falls under federal jurisdiction, campus officials and police should play no role in enforcing immigration law.

The American Anthropological Association held an emergency session during its annual meeting in Minneapolis, MN in November 2016 to outline the following suggestions beyond signing on as sanctuary campuses and providing support to DACA recipients and undocumented students:

  • form campus and regional task forces and groups to promote inclusion and identify discrimination;
  • create and share course materials related to diversity and immigration;
  • encourage scholars to become publically engaged intellectuals to inform the public discourse; and
  • create staff, faculty, and student coalitions committed to immigrant organizing and advocacy.

Universities can also be active in convening like-minded local stakeholders like immigrant legal resource providers, faith-based organizations, lawyers, and immigrant rights and advocacy organizations to share resources and assist the community. See the end of this Quickfacts for a list of Colorado organizations/allies and resources.

Recommendations for the University of Denver

At the University of Denver, the Center for Multicultural Excellence (CME) has long been an advocate and resource for undocumented and DACA students in navigating college life. CME has also provided guidance on advising undocumented students. CME is currently searching for an Assistant Director of Student Success, among whose functions include supporting historically underrepresented students and leading programs and outreach to support DACA and undocumented students. DU Admissions provides information to assist DACA applicants. In Colorado, United We Dream is also active in allying with, and organizing immigrant youth, leaders. In particular, DU alumnus Blanca Trejo has connected undocumented and immigrant youth to organizing, leadership, and educational opportunities. She has chaired the Keeping the DREAM Alive (KDA) Conference in Colorado each year since 2014. The new co-chairs of KDA are Linda Quintanar from DU and Julia Montijo from Emily Griffith. College Goal Colorado also provides useful information about college admissions and financial aid for undocumented and DACA students. Specifically, Colorado ASSET bill (SB 13-033) has enabled undocumented youth who met the qualifications to pay in-state tuition at Colorado’s public universities since 2013.

Some universities have put together websites to pool resources for DACA and undocumented students. University of Maryland’s new website for undocumented students would be an instructive model. The Community College of Denver Foundation also began the Open Door Scholarship Fund in 2015-2016 to help support undocumented and DACA students. DU can follow some of these leads by compiling resources in a safe and accessible place/site, assisting/connecting students with mental health and legal resources, convening supportive faculty, students, and staff, and ensuring an inclusive, tolerant, and safe space. Adrienne Martinez, Director of Student & Career Services at DU’s Graduate School of Social Work and former Director of Student Success at CME, also suggests that “DU clarify protected student data (by FERPA) and that frontline faculty and staff are not to share any information.” She also recommends training for faculty and staff to know the resources, policies, and supports for DACA and undocumented students on and off campus.

Resources

Colorado Organizations/Allies:

Low or No Cost Legal Assistance/Consults: