In keeping with the terminology used on the campaign trail, President Trump’s new immigration enforcement guidelines will make America’s immigration courts busy again. The immigration-enforcement guidelines issued under President Trump are a vast change from the deportation policies under the Obama administration. While the new guidelines call for the hiring of thousands of more enforcement agents, the effect the guidelines will have on the courts has not yet been addressed.
The guidelines advise and outline how the Department of Homeland Security (DHS) plans to implement the Executive Orders on border security and interior immigration signed by President Trump last month. Under the new DHS guidelines and Executive Orders, all those in violation of immigration laws may be subject to immigration enforcement including arrest, detention, and/or removal from the United States.
While the plan does not apply to recipients of Deferred Action for Childhood Arrivals (DACA) or those who are described as Deferred Action for Parental Accountability (DAPA) — which includes those people who came to the U.S. before 2010 and have either a U.S. citizen or lawful permanent resident child who was born before November 20, 2014 — the guidelines do set forth priority for Immigration and Customs Enforcement (ICE) to follow. The guidelines prioritize categories of unauthorized immigrants ordered to be removed from the United States beginning with those convicted of a criminal offense. The guidelines go on to extend deportation to individuals who “have committed acts that constitute a chargeable criminal offense” or “otherwise pose a threat to public safety or national security.”
Other key points of the DHS guidelines include expanding a program that authorizes DHS to designate immigration enforcement authority to state and local law enforcement agencies, also known as Secure Communities. They also eliminate policies that facilitate the release of unauthorized immigrants apprehended at the border. Most importantly for immigration courts, the guidelines expand DHS’s ability to expedite the removal of unauthorized immigrants in the United States who have been continuously present in the country for less than two years. Under the Obama administration, expedited removals only applied to unauthorized immigrants who were encountered within 100 air miles of the border, and within 14 days of entry. These expedited deportations allow enforcement agencies to detain and deport an individual without appearing before an immigration judge.
But will the expansion of the expedited deportation process ease the burden on the courts of the new guidelines? Experts do not believe so. The guidelines were issued at a time in which the United States immigration courts already have a record high backlog. Prior to the guidelines, individuals with a case in immigration court were seeing an average wait time of 673 days. Currently, New York cases are being scheduled for hearings as far out as 2020. With only 300 immigration judges in the country, the backlog is continuing to grow. These guidelines are expected to exponentially increase the judges’ backlog which are currently averaging around 1,800 cases.
The Executive Office for Immigration review has stated that they are currently reviewing the guidelines and hope to hire 50 more judges. However, with the hiring of the 50 judges, the backlogs for each judge would still stand at about 1,500 cases. While the guidelines state that expedited removals are the solution to this problem, immigration lawyers expect the removals to be challenged in the federal courts as a violation of due process. Therefore, until there is a definitive ruling in those cases, the guidelines will also create an increase of cases in the federal courts. If claimants are successful in a claim for a violation of due-process, the immigration courts may become extremely overloaded as each detained individual will be entitled to their day in immigration court.
With immigration policies rapidly changing under President Donald Trump, it is now more important than ever that non-citizens and their loved ones be aware of their rights and legal options. The New York immigration attorneys at Bretz & Coven, LLP have a long history of being passionate, knowledgeable, and honest in their work in providing non-citizens with legal services they can rely on. With two convenient offices located in the tri-state area — New York, New York and Metro Park, New Jersey — the firm’s attorneys are available to provide quality legal representation to New York, New Jersey, Connecticut and Pennsylvania residents on all immigration law matters. To schedule a consultation, call (212) 267-2555.