Jennifer Chacón & Stephen Lee on changes to immigration enforcement under a Trump administration
UCI Law Profs. Jennifer Chacón and Stephen Lee break down the numerous and complex uncertainties in immigration law, including protection for immigrant communities, sanctuaries, and where to find reliable resources.
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Jennifer Chacón
Professor of Law
Expertise: Immigration law, constitutional law, criminal procedure and criminal law -
Stephen Lee
Professor of Law
Expertise: Administrative law, immigration law
Featuring:
Podcast Transcript
[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #ucilawtalks.
[Stephen Lee] Welcome to UCI Law Talks, a podcast that is operated out of UC, Irvine School of Law and that focuses on issues of law and the legal profession. I'm Stephen Lee, a professor at UC Law School and your host for this week's podcast. I'm delighted to be joined this week by my friend, my colleague, and, perhaps, most importantly, an internationally-recognized expert on all things immigration-related, Professor Jennifer Chacon. Jennifer, welcome to the podcast.
[Jennifer Chacón] Thank you. I'm excited to have this conversation with you.
[SL] I am, too. I am, too. Continuation of the kinds of things we were talking about in our office and hallways, anyway, we figured we might as well just record it for the entertainment of the general public. So, let's start, Jennifer, with some basic information about who you are and what kinds of questions and issues drive your research agenda.
[JC] So, I am somebody who grew up on the U.S./Mexico Border. I'm from El Paso and so, I think immigration is something that infused my life as a child, but I think I came to my appreciation for its importance in the law while I was a law student. I was a second-year law student working in the immigration clinic doing silent cases as the 1996 changes to law came down. I started to realize the tremendous power of the state over noncitizens, the ways in which immigration law could move and change very quickly, and also, the growing intersection between criminal law and immigration law, which became an area of focus for much of my scholarship.
[SL] Yeah, that's a similar trajectory that my career has fallen as well. I grew up in Albuquerque, New Mexico, just a few miles north of El Paso, so the border was always casting a shadow in my life as well. Well, of course, my parents are immigrants and they're immigrants from Asia and my mother was pregnant with me when she came over. While I was born here, I always got the sense that those few months that enabled me to be born here made a critical difference in terms of the legal status and legal journey that eventually might've had to have follow had I been born elsewhere. Also, at law school, I should say that, for me, and my immigration students know all about this case, but I remember, in 2003, Demore versus Kim was decided. For the uninitiated, that was a case that upheld the constitutionality of mandatory detention for certain so-called criminal aliens.
In that case, I began to understand the profound impact on these legal categories and deprivation of constitutional rights. So, fast forward, 13 years later, here we are. So, let's talk a little bit about the changes in immigration enforcement policy under a Trump administration. So, first, how are you feeling about the election now that the dust has settled?
[JC] So, that's a tough question. I think one thing that has been really important, to me, to say, after having watched the reaction of many immigrants in the community over the last few weeks, is that one thing that is very important to stress is that so much of the law moves slowly that there are huge pieces of immigration law that will not change in the absence of congressional action. So that means things like the categories of immigrants who can come to the country as being sponsored by family members or being sponsored by employers for people that have applications in the pipeline for certain forms of immigration benefits, many of these things are not going to go away or disappear overnight.
Congressional action is required to change them and so, I think one message that it's important to convey is that there is some stability in the law because we have statutes on the books that would require acts of Congress to change.
On the other hand, we also have a lot of executive discretion built into the immigration code. So, we've seen this over the past few years when we've watched President Obama and prior presidents declare priorities with regard to who should be the focus for immigration enforcement efforts. We have budget for the removal of several hundred thousand people a year, but there are many more people than that who are either present without authorization or who have violations of their visa status that would make them deportable.
So, there are fewer resources than there are people who could potentially be targeted by the very broad immigration laws that we have. So, executive discretion becomes very important as a funnel through which people are selected for enforcement targeting. Under the Obama Administration, that's meant programs like the Deferred Action for Childhood Arrival Program where the Obama Administration said these individuals are not priorities for deportation. So, they shouldn't be sitting around nervous about the fact that they might be deported and instead, they should be given work authorization and driver's licenses.
So, they can live their lives because they're just not going to be on the deportation radar screen any time soon. We just can't do it and, similarly, both Obama and many administrations before him have articulated in memoranda who their priorities for removal are, recent arrivals or individuals with certain kinds of criminal convictions, so that those resources are targeted toward particular populations, at least, ideally. Although, you and I both know that that's a much more complex situation of that, but what happens with the Trump Administration is that we don't know what those enforcement priorities are going to look like. We do know that the law that makes people deportable is quite broad and that the grounds for relief and discretionary relief once somebody's been identified as deportable are pretty narrow. So, once the Executive Agencies make a decision that they want to deport somebody, it's pretty easy to deport people.
So, a lot depends on how an administration decides to prioritize who they want to target for removal, whether they want to have targets for removals or whether they want to pursue arbitrary policies of whoever they can get.
[SL] Right.
[JC] A lot of Trump rhetoric, pre-election, I think has been very unnerving and disconcerting to individuals who work on immigration law and to immigrant communities because he has suggested that he doesn't really distinguish or differentiate among immigrants and that his focus is really to remove everybody who's present without authorization and also, target –
[SL] Except the chosen ones, except the terrific ones
[JC] Except the terrific ones. So, we don't have a very clear sense of what that means and so, I think I might throw that back to you. We've had his ever-changing conversation about who's terrific enough to avoid enforcement and I wondered if you had thoughts on how his rhetoric has evolved on that issue.
[SL] Sure, sure, sure. So, the information we have on the coming changes to immigration policy changes with every tweet. So, it's hard to keep up, but we do know from President-Elect Trump's recent interview with Time magazine that he's indicated a lot of sympathy for the so-called Dreamers and DACA recipients. I think he has said that ... right here, I have it here. He said, "We're going to work something out that's going to make people happy and proud. They ... " that is the DACA recipients, " ... got brought here at a very young age, they've worked here. They've gone to school here. Some were good students, some have wonderful jobs. They're in Never-Never Land because they don't know what's going to happen." So, I think we have some sense, a sharper picture of who the terrific people are. And I should say that this is something that has long been a part of the national narrative of the good immigrant and bad immigrant, going all the way back to Plyler versus Doe and Brenner, working so hard to craft an opinion that allowed Justice Powell to sign on, really rests on the idea of K-12 children who had to control over their unlawful status.
Of course, it was one of the few cases in the U.S. reports that vindicates the rights of undocumented immigrants, but, in doing so, it really cast a dichotomy or a binary between the good immigrant and the bad immigrant.
But, of course, the bad immigrant being the parents who were thrown under the bus, so I do get a sense that there is some political stability to that label. I don't know how much further it's going to stretch and I think that's one of the great concerns that many of us have, but, at least, for now, I think that there is some movement in that direction. I want to talk a little bit about the appointees we have before, so President-Elect Trump has indicated an intent to nominate Senator Jeff Sessions to be our next Attorney General. I was wondering if you had any thoughts on what a Sessions Justice Department might portend for immigrants and immigration enforcement policy.
[JC] So, that's one area of concern. I think Sessions has been a long-time opponent to any path to legalization for individuals with unauthorized status. He's opposed various iterations of the Dream Act in their early forms, he's opposed comprehensive immigration reform that was supported by more moderate Republicans in 2013. So, he doesn't seem to have an appetite for protecting anyone who falls into the broad category of a deportable noncitizen. So, I think one thing that we've seen under Holder and Lynch, under the umbrella of the Obama Administration's discretionary umbrellas, that they've tried to make a number of choices about how they go about prosecuting immigration cases. I think one of the worries with this Sessions Department of Justice is that he will not err on the side of discretion and will be committed to seeing a full effect of immigration law brought to bear on immigrants who happen to get caught up in the net of enforcement.
So, we should note that, by and large, it's going to be the Department of Homeland Security that will be on the frontline here, not the Department of Justice.
Department of Homeland Security will be the people who are on the front lines in terms of deciding who's being brought into the system, but, when it comes to litigating some of these cases to their finale, Sessions' commitment to the strictest possible enforcement in immigration law could have a real impact on how these cases are processed.
[SL] So, that's a great point that you made that it's going to be the Department of Homeland Security, not the Justice Department who's going to be responsible for initiating and pursuing removal proceedings and enforcement plans. It's one of the few things that the Homeland Security Act got right, to separate, disaggregate immigration functions between those two departments. At first, I admit, I was thrilled to hear that ... well, thrilled is an overstatement. I was feeling some level of relief when I hear that Sessions was going to be the nominee for the Justice Department rather than Homeland Security. Then, I began to think about all the work that the Justice Department does through its immigration judges and, in particular, the Board of Immigration Appeals. So, one of the things that often goes unappreciated is the nearly unfettered control the Attorney General enjoys over the appointment and removal of members to the 17-person Board of Immigration Appeals, BIA.
Of course, any practitioner knows that the BIA plays an important function, not just in reviewing IJ decisions, serving as a kind of agency, appellate body, but also, in setting precedence at the agency level and moving law in one direction or the other. So, on a slower, more deliberate level, I think there's going to be an anti-immigrant agenda being carried out through that body as well. We saw a flavor of that under the Bush Administration where he began removing BIA members who ... well, not he, but through his Attorney General, began removing members who expressed a little too much sympathy towards immigrants. I fear that the similar kind of dynamic is going to play out in the Sessions Justice Department.
[JC] There's one other place where we might think about the impact he might have and that's in the prosecution of immigration crimes.
[SL] That's great, that's true.
[JC] So, we've seen under both Bush and Obama a significant commitment to using Federal Department of Justice resources to prosecute criminal violations of immigration law. Primarily, under the Bush Administration, misdemeanor and illegal entry. Primarily, under the Obama Administration, felony, reentry. We see that those cases now actually numerically make up the bulk of federal criminal prosecution. So, they outstrip federal prosecution of drug crimes, federal prosecutions of white collar crimes, a federal prosecution of gun crimes. It has become the place where the vast power of the federal government and the criminal prosecutions here has focused, and that's an area where, under Sessions, that kind of commitment to prosecuting individuals for criminal violations that relate to the immigration law will presumable be strengthened, and certainly will be pursued, and presumably be strengthened as well in the coming years.
[SL] Yeah, I think that that impulse to disaggregate the numbers of people who belong to the so-called criminal aliens is important because the only kind of crimes that matter if we peg criminal conduct as a marker for some kind of violent behavior ... the only ones that matter are the ones that are outside of the immigration control context because it's really disingenuous to call people who reenter after deportation, a criminal in the same category, someone who commits a violent crime. I think that's a place where academics have been helpful in trying to educate the public on what that really means. So, let's shift gears a little bit and just talk about the Department of Homeland Security. We know that John Kelly is a presumptive nominee for Homeland Security. At this point, I guess he's a relatively new face to the world of immigration law, immigrant rights advocacy, but do you have any initial reactions to that appointment?
[JC] So, I don't have a lot of strong reactions. I guess one reaction I had was relief and that's only because some of the names that have been batted around as potential DHS Secretaries would've much more clearly signaled a particular approach to immigration enforcement. For example, some people had batted around Kris Kobach's name and he was the author of Arizona's SB 1070 and a vocal proponent of hardline immigration enforcement efforts and the ramping up of immigration enforcement, so that would've been a clear signal that this was an area that would be a deep, deep concern. Similarly, some people, I don't how facetiously, talked about people like Maricopa County's former-sheriff, Joe Arpaio. So, a lot of names that I think would have immediately been associated with a very, very hardline approach in this area did not come to be with the selection of Kelly, but I think that doesn't necessarily answer all concerns. I know you had some preliminary thoughts about this, too, so I wondered if you wanted to reflect on that.
[SL] Well, I'll just say that I don't know much about John Kelly either other than he was a highly-decorated commander in the Marines. I will say that that data point alone suggests a market shift from the last four confirmed DHS Secretaries. So, if you look at Secretaries Tom Ridge, Michael Chertoff, Janet Napolitano, and Jeh Johnson, they were all lawyers by training. They had all some mix of experience between public service and time spent in the private bar. Then, by contrast, nominee Kelly has no J.D. and, again, has primary military experience and I should point out, to be fair, that such a profile isn't entirely unprecedented. The two acting secretaries of Homeland Security had similar profiles, but, at least, with regards to the confirmed secretaries, they all have represented an extension of the legal profession. I do wonder what it signals, perhaps it's a signal to the public that, under a Trump administration, Homeland Security activities will have a closer tie to the efforts that are carried out overseas in areas of conflict, but, again, it's really too hard to tell right now.
It's still very preliminary, so let's talk about what has perhaps been the most important immigration benefits program the last several decades and that is Deferred Action for Childhood Arrivals. What's going to happen to this program?
[JC] So, I think we talked a little bit about this before. There is a lot of uncertainty around what's going to happen to this program. This is a program that was created via a memo issued by the Department of Homeland Security's Secretary Johnson. So, it is an administrative creation and an administration can eliminate its own creation in the charade. It's not an act of Congress, it's not a law that would require repeal, it's not even a regulation that would require a process of repeal. So, it's very, very fragile in that sense and a new administration could come in and revoke DACA on day one, say, "I am discontinuing the program." Then, there are legal questions about whether he could also immediately revoke employment authorization and other benefits that have flowed from deferred action status. There are legal questions around that, but he certainly would have a great deal of discretion to revoke the program.
Even if he couldn't immediately claw back employment authorization, it's something that would lapse once the individual's two-year term of deferred action was up if he didn't renew the program. So, for most people, within the next few months, that would mean that the program would expire for them and that there would be no program for them to apply to. I think he had, on the campaign trail, promised that he would revoke or repeal this program on day one in office and so, that was one of the immediate concerns upon his election was that these over 700,000 students who have received ... students and people working who have received deferred action status would lose their status immediately on day one. I think, in the days and weeks that have led up to and followed the election, he's backed away from those statements that it's his priority number one, to repeal the program on day one.
So, what we have instead are statements about his desire to keep terrific people in the United States, his sympathetic statements about people who are students, and who have worked hard, and, in his view or construction, are relatively innocent with regard to their unauthorized presence. So, I think what this signals is that he has moved off of, much of the way he's moved off of the notion that we need a 3,000-mile wall that he's going to build immediately. He's moved off of this hardline rhetoric that he's going to get rid of this program on day one and that just leaves us in a position where we're trying to feel out what that will mean. Will it mean that he just lets the program limp along and then, expire?
It sounds like, now, he's tending toward trying to do something that would extend the policy of status.
There is some discussion that some Republicans like Lindsey Graham and the Senate are looking at the possibility of legislative solutions to this issue, so enacting a law that would provide some form of legal status to individuals who are currently DACA designees. At this point in time, I don't think any of us are sure which way this is going except to say that the direction it's moving is certainly more encouraging than the direction it looked like it was moving the day before the election.
[SL] One friendly amendment to your comment there and that is you indicated that DACA was written in the Johnson memo, but it was actually written in the Napolitano memo of 2012.
[JC] Right, sorry. Yes, that's right. In 2012.
[SL] But, the only reason why that matters for our purposes is that in a 2014 memo that outlined the terms of expanded DACA and DAPA that was eventually rejected by the Fifth Circuit and then, upheld by the Supreme Court by a divided vote. There was a question as to whether or not the next administration might pursue that same program through notice-and-comment rulemaking. Now, with the Trump Administration, that's almost written the case that it won't proceed in that way, but, of course, what you mention about Senator Graham's bill that would provide a limited fix is very encouraging for DACA recipients.
[JC] Yes, so thank you for that. It was under Napolitano, it was June of 2012 when the memo was issued. Just to continue on that theme, there is a silver lining about the DAPA program. I've had many people ask me what's going to happen to all those people who applied for DAPA and have their information sitting in the database to which I say, "Well, fortunately for them, the program never went into effect, so you don't have people who have applied for the deferred action for parents of lawful permanent residents and citizens."
Although some organizations worked with people to preliminarily get their paperwork together for that program, the program was never implemented. So, those individuals never filed for relief pursuant to the Johnson memo, so that may be the upside of that. The downside of that is it also means there are a large number of people who might have had some form of deferred action granted under Obama. They, too, might have been covered by or part of a discussion about legislation and that seems less likely now because they're in a universe where they don't have a benefit extended to them.
The Trump Administration may or may not be amenable to expanding the sphere of individuals protected by DACA.
[SL] Beyond DACA, another subject of immigration enforcement or a subtopic of immigration enforcement that's really troubling me is the return of work site raids, that is really troubling me. One of the iconic images during the Bush Administration was the Postville, Iowa raid, the large-scale raids that led to deprivations of due process, and roundups, and mass deportations. President Obama really tried to shift enforcement policy in that direction to target employers in a much more regulatory fashion as opposed to a traditional law and order approach. I fear that that's going to return now under a Trump administration. You're already seeing a flavor of this in the weighing days of the Obama Administration. I don't know if you're following the work site raids in Buffalo, New York. In a lot of ways, that is defined of the enforcement priorities set by the Obama Administration.
I feel that a lot of these offices are going to feel emboldened now that we have a new set of political appointees coming in and that's something that I really am worried about, especially with regard to all these kinds of administrative agreements between labor agencies and DHS. One of the reasons that departmental labor and these other state level entities have been able to make some progress in the last few years has been the assurances sent out to immigrant communities that whatever information that they submit to labor agencies will be sent into a firewall, so that it won't ever be shared beyond them. Without that firewall, I fear that we're going to have tips just drawing up. Immigrants will no longer feel comfortable sharing that information and these laws will effectively go unenforced, which, I should say, not only with ex-immigrant communities, but also, should be of concern for all of the citizen authorized workers as well because that inevitably reduces their protections.
[JC] I think that's right, I think it also increases concerns about racial profiling generally and that's obviously not just for noncitizens, but for citizens who share racial and ethnic backgrounds with the members of immigrant communities. So, I think, I agree that we're likely to see both because different agents on the ground who have been feeling more constrained by the Obama administration's priorities are now going to feel less constrained. We're going to be seeing more workplace actions, perhaps more home raids as well or more sweeping home raid actions. I think the other point to add here is that these kinds of high profile highly visible enforcement efforts are in keeping with Trump's rhetoric around immigration enforcement, which is a rhetoric of displays of enforcement, displays through the building of the wall, displays through the notions evoked in a Republican debate in the debate with others in the Republican primaries where he invoked the image of Operation Wetback, the 1954 Eisenhower enforcement effort.
These are very visible high profile enforcement efforts that send a message and that seem to be his hope, right, to pursue a policy of these high profile enforcement efforts.
Workplace raids fit that model as do high profile home raids that target everyone in the household. So, I think that is a concern, that both agencies will feel less tethered by priorities and that they may feel that it will acceptable and desirable in the new administration for them to undertake more high profile visible efforts of enforcement, regardless of whether that actually serves the good of the nation, or serves the good of communities, or serves workers. I think those questions may be lower priority than, "Does this look like we're making a show of force in an area where we've said we will make a show of force?"
[SL] So, let's move away from the shift in enforcement priorities and programs and talk about places where immigrants and their allies might exercise some agency and resistance. So, a concept that has attracted a lot of attention in the last several weeks, really the last several year, but, especially the last several weeks, has been sanctuaries. So, can you say a little bit about sanctuaries? What are sanctuaries?
[JC] I think nobody knows what a sanctuary is, I think when people are evoking notions of "sanctuary" in the context of a university or a locality, what they have tended to mean is they have meant that this particular jurisdiction or entity will protect individuals who may be vulnerable to deportation. There are various ways they think about protection and one way they think about protection is that they won't engage in a voluntary information sharing. So, if they have information in their files that an individual lacks legal status, that they won't voluntarily turn that information over to federal immigration enforcement agents if that disclosure is not required by law, that they will protect the privacy concerns of individuals and their immigration status. Then, they will be protective of records that indicate that an individual might be out of status.
Another way that protection might manifest itself is by setting a higher standard about how and when immigration enforcement officials will be allowed to be within a particular jurisdiction or on a particular campus, so requiring that ICE have a warrant in order to make entry into a particular space, on a private university, maybe to enter the campus, and a public university, perhaps to enter dormitory spaces, right? So requiring that ICE, if they're allowed in at all, are only allowed in if they can make the necessary legal showings and not allowing them in permissively to engage in policing activities.
This would be pretty consistent with what they do anyway or have always been doing, so those are some meanings of sanctuary. When we think about sanctuary, the way it was talked about in the 1980s, we can think about it very differently and in a much more robust way. I think when some activists and organizers were talking about sanctuary, this is the image of sanctuary they have. So, in the 1980s, there were individuals who came largely from Central America seeking asylum status as a consequence of the targeting that they experienced in periods of instability in their country and the regimes of violence that they were fleeing. Their claims were being denied, so they were being denied asylum status wholesale and, as we know from later litigation, wrongfully, in many cases, but there were some churches and other entities that took the stand that they were going to protect these individuals from being returned to danger.
They gave them sanctuary in a very full and robust sense of the word, meaning that they said, "We will protect these people and these places, we will make sure that they are not turned over." That is true whether or not somebody has a warrant for their arrest and that is true whether or not there is a legal authorization for giving this protection. In some cases, those individuals were criminally prosecuted under harboring laws for harboring unauthorized migrants. So that is the robust meaning, the most robust meaning of sanctuary, which is an active civil disobedience in some sense, where individuals and entities are acting in protective ways that are in defiance of written law and that run that risk, as civil disobedience often does, of prosecution. So, one of the issues that is emerging around this discussion about sanctuary and what it means right now is that when universities are signing pledges or being asked to sign pledges about sanctuary, they are thinking about sanctuary in the sense of the former more limited vision of sanctuary that I've articulated, one that prohibits information sharing absence a legal order, one that prohibits ICE on campus absence some legal authorization for their presence.
It does not envision the more robust civil disobedience vision of sanctuary that the movement of the 1980s envisioned. I think some of the activists and organizers are really asking for this more robust vision and so, I guess one concern I have or maybe just more of a general sense I have is that when we talk about sanctuary and what it means in a particular context, we do need to be clear about what limits organizations are signaling when they think about their own capacity to provide sanctuary. That said, I think there's also an important signaling function that's served when organizations say that they plan to be protective of individuals' privacy and be protective of their spaces in terms of enforcement efforts. It just sends a signal that they plan to stand with people, but there are these questions about what that means and how far it goes.
[SL] I do think that there is, so I love that and part of the reason I love that taps into the deeply emotional response that the idea of sanctuary elicits in many people. I think that many of us in our generation aren't particularly religious, yet there's something that feels so right about linking your critique of existing immigration laws to this larger movement in that civil disobedience tradition. In other words, to claim a place is a sanctuary is simultaneously to protect individuals and also, to levy a very deep and heartfelt moral critique of existing laws. I think that a lot of people who aren't activists by nature find themselves very excited about that label. Now, of course, as lawyers, we always have to be careful what we promise individuals and I think you're absolutely right to suggest people not feel as if they're insulated against any kinds of enforcement activity by the federal government. Nevertheless, I think in terms of organizing and generating a social movement that's a potentially fruitful avenue to pursue.
[JC] I agree.
[SL] Now, let's talk a little bit about part of the reason why sanctuaries, and universities, and localities have taken this stand, and that is the very complicated nature of the family unit. People often cast people with the unauthorized immigrant brush wholesale as if entire communities categorically belong to one category of being unauthorized, but, of course, that's not the reality. I know you have some thoughts on the mixed status family and how that plays into all this, so what are your thoughts?
[JC] Well, I think one of the things that I'm observing is that when there are concerns about deportation, it's concerns that are often taking place in the context of a family where some members of the family are citizens, some members of the families may have lawful residence status, and some members of the family are undocumented. What that means is that when we talk about enforcement efforts, we're not just talking about unauthorized noncitizens who are going to be affected. We're talking about families who will be affected by these efforts and that includes a fair number of citizens and lawful permanent residents. This also means that regardless of what we think about what the future holds, if we think that the future holds increased enforcement, and I think we probably do, then it's really important to think about what that means for families where a family member, particularly when that family member is a breadwinner or a primary caretaker, is vulnerable to deportation.
I think it's really important for families to start thinking through, having plans in place to deal with the possibility that a breadwinner or a head of household might be, maybe not deported, but might be detained for a substantial period of time and in proceedings for a substantial period of time. We can envision that happening on a much wider scale, so what does that mean? It means you need to have a plan in place for who's going to take care of your kids while you're in detention. You should make sure that your assets are not just registered in your name, so that if somebody needs to liquidate an asset, like sell a house or a car for funding, that they can do that. It means making sure your bank accounts are jointly held, so that if your kids need money for food while you're in detention, there's a way for them to access those assets.
It does mean having a bank account because that means that you can have somebody that you trust who has access to your assets rather than somebody who can get into your house and deal with your money. So, I think there are lots of planning things that go into concerns or planning things that people can do to protect themselves or to make themselves more ready in the event that ... in their worry that individuals in their family might be targeted for removal. So, this is the non-panic approach. I think a lot of people are very worried, right?
[SL] Yeah.
[JC] They're worried that something is going to happen to them and they're thinking, "Should I sell my house? Should I leave?" There are a lot of things that you could do.
[SL] Well, it fits with this narrative of a natural disaster that I've heard come up. In other words, in California, we always know that an earthquake is a theoretical possibility, but, even when it happens, we find ourselves scrambling. I think for a lot of people on the left, that's what they felt when Trump was elected. Well, in theory, he could be elected, but we saw the numbers and we just trusted it was never going to happen.
[JC] Right.
[SL] So, there's a sense that we're all scrambling in conjunction with these organizations and people on the ground to try to piece together a safety plan for what's next.
[JC] Yeah.
[SL] I also think that there's an important message hidden in this mixed status reality, which is that usually the case, not always, but usually it's the case that if there is a mixed status and there are citizens, it's usually the children who are citizens by virtue of birthright citizenship. I do think that it forces certain special and demanding responsibilities on those children to take the lead in terms of caring for their family members, their parents, grandparents, and uncles. And that, in a lot of ways, can be a very uncomfortable dynamic for children who are, like most children, would tend to get, or defer, or take cues from their parents, but, really, in this situation, you're reversing that dynamic. You're the one who's going out finding legal assistance, you're the one who's having to try and find information about whether or not you should sell the house. I think that maybe college students and law students I speak to feel great unease about this, but I always encourage them that this is the opportunity for you to take the lead in your community because if not you, then no one else can do this.
[JC] I think the other thing I just want to add to that, I completely agree, I think one thing that we just need to acknowledge is that this means that there are small children who are experiencing very, very high levels of stress around this issue right now.
[SL] That's right, that's right.
[JC] So, educators need to be aware of the fact that kids in their schools are struggling with this. I think many are and are doing just yeoman's work in terms of providing support networks, but children are very aware of the discussions that are happening around the possibilities for increased enforcement in the Trump Administration. They were very aware throughout the election and they are experiencing stress in the wake of the election. They feel like it may have very specific implications for them and so, I think it's really important that we not leave them out of the conversation and that parents who can take the time to talk to their kids about what this means and to also talk to them about the need to plan realistically and not worry excessively.
[SL] That stress is going to ... there's a good chance that stress will materialize in a trauma later. I was just having a conversation with a friend of mine a couple weeks ago who was a very successful law professor, top of her game, top of her field. She disclosed to me. I had no idea, but she disclosed to me that she, herself, was undocumented at one point in her life. Then, she broke into tears sharing this information, saying that she never talks about it with anyone. There's a way in which this experience scars you and if there's no outlet for you, it really can become an overwhelming burden for these people if they become adults, even despite beating the odds. So, I think that's a great point, so we're getting towards the end of time here, Jennifer. I thought that maybe we should speak directly to our listeners who, themselves, are immigrants or those who serve immigrants and talk a little bit about the kind of resources available to them. So, whom should they trust?
[JC] So, I want to start with the notion that there are lots of people that they maybe shouldn't trust.
[SL] Okay.
[JC] We'll start there.
[SL] Maybe that's a better place to start.
[JC] I'll start with the negative, right? I think one of the ... well, this is one of the problems with having a highly stressful and uncertain situation. You and I are people who study immigration and we cannot say with any certainty what will happen to DACA. We cannot say with any certainty what Trump's enforcement priorities will be, we can't say with certainty how many people will be removed next year. We can't say with any certainty whether Congress will take any legislative action that will increase the range of options for people who maybe are presently here without authorization. There is a great deal of uncertainty about what the law will look like in the next year, two years, four years. One of the problems with that uncertainty and the anxiety that uncertainty creates is there are people that are happy to capitalize off of that insecurity.
[SL] Yeah, that's right, that's right.
[JC] The simple truth is that for many people who are here without authorization there is no path to legalization that the law currently creates. There are some narrow roads, there are narrow roads for individuals who have been the victims of crime and have cooperated with law enforcement for the U visa. There are narrow roads for individuals who have been abused by citizens or lawful permanent residents. There are narrow roads for individuals in extreme cases to possibly have cancellation of removal when they have a citizen child who will experience extreme hardship if they're removed. There are narrow roads around certain kinds of asylum or withholding benefits, but, for many, many people, none of those are fits.
For many, many people, even if they can find a fit because they marry someone who's a citizen, there are issues in the law where they might have to try to regularize in ways that will require them to leave the country and face the possibility of a 10-year bar before return.
So, I think that means that there are a lot of people that, unless Congress actually gets it together to fix the way that the law works right now, there aren't very good options for them. That said, a lot of people want to try to do something before Obama leaves office because they fear this may be their last chance.
So, there is a scramble for people to apply for benefits that they may not be eligible for, or to try to get an employment authorization that they may have no path to, or to try to take an action, like engage in a marriage, that may actually not really create good opportunities for them. There are people who are willing to profit from that and so, I think one piece of advice that we need to be giving is that it is not sufficient to call yourself a notario, right? That's somebody who can notarize a document, that does not make you a lawyer and it doesn't equip you to give immigration advice to people.
So, people should be careful about who they're asking for immigration advice. If they think they're consulting a lawyer, they should be comfortable asking that person if they will demonstrate that they are a lawyer by showing that they are bar-certified. They should make sure they're getting advice from somebody who can actually give legal advice. They should be very, very cautious about filing paperwork with the Department of Homeland Security-
[SL] That's right.
[JC] To pursue options that they're encouraged to pursue because they're encouraged to recognize that no benefit is going to be processed before the Obama Administration leaves with the exception of some emergency applications of a very narrow category, which means that whatever paperwork anybody files right now, it's going to be decided under the offices of the Trump Administration. So, you want it to be paperwork that's being filed for relief that you qualify for and that is generally going to offer you some form of protection and that you are a solid candidate for because, otherwise, what you've done is put your paperwork and information, where you live and a lot of your personal data, in front of Department of Homeland Security officers who are now charged with a more aggressive enforcement policy. I worry that people are going to pay money to individuals who don't have the proper training and then, they're going to pursue legal remedies that they're not actually entitled for. Then, the upshot of all this will be that they've paid money to effectively speed their own potential removal.
[SL] To help themselves as potential removable.
[JC] So, I just think, again, in keeping with the "don't panic" message, it's really important for people to be aware that they shouldn't be rushing to file legal paperwork and that if anybody's trying to convince them that they really ought to rush, then they really need to make sure that the person that they're talking to is somebody who's certified to practice law and has a good reputation in the field. Because there will be many people who will be encouraging people to take steps that are really dangerous right now.
[SL] Yeah, no. I think that's absolutely right. Sometimes, I think that you want to hear is not the thing that you need to hear and that's true of whether or not the situation involves immigration benefits or something beyond that. I think just anyone in a bad place, it's important to get sound and accurate advice, so where are there places for immigrants to get good advice?
[JC] So, one, I want to give a shout out first to the UC system and I want to, just for the listeners who might be affiliated with the University of California, for people who are students. There is the University of California Undocumented Legal Services Center, which is based out of Davis, but, which has lawyers on staff who are charged with assisting student in the UC system with immigration issues. To the extent their capacity allows, they are also charged with assisting the families of those students. So, if you have a sister or a mother who's not a UC student, but you, yourself, are a UC student, then you can seek the services of the UC Undocumented Legal Services Center, so that's one resource that some people are not aware of and should be made aware of. There are the well-established legal service organizations that've done a lot of work around immigration. So, NILC is a good example.
[SL] That's right.
[JC] MALDEF is another good example. The ILRC, the Immigrant Legal Resource Center, these are organizations that have a long history of doing excellent work in the immigration services world. You can go to their websites. They have a lot of information about what they are recommending in terms of whether to apply for DACA or not apply and in terms of what they think one can expect to happen in the coming months. So, those are great resources for people online and often in more than one language.
[SL] The language point's an important one because one of the benefits of going to an organization like, for example, Asian Americans Advancing Justice, is that they've made a lot of their "know your rights". They've made the "know your rights" materials available in a large number of Asian languages. So, again, for listeners out there who are the children of immigrants or who have family members who are unauthorized immigrants, please visit websites like that to get those resources then, forward on to their parents and relatives to help them make better decisions about this uncertain movement. Well, Jennifer, we're at the end of time. Thank you for spending a little time here to chat about this moment of uncertainty and I hope that we can revisit some of these issues once we get a better sense of how the Trump Administration is going to carry out its immigration enforcement plans.
[JC] Yeah. Well, thanks for doing this with me. This was fun.
[SL] It was great.
[Narrator] Thank you for joining us for UCI Law Talks, produced by the University of California, Irvine School of Law.
