As a lawyer, I heard stories all the time. As a friend, I feared in silence for the well being of those I know. As US naturalized citizen, I’m concerned about what could happen next. For these reasons, I decided to interview Maria Mercedes Pabón who once taught me immigration law at Indiana University. She now teaches in Loyola College of Law in New Orleans.
1) Professor, the new executive orders signed by Donald Trump differ from Obama’s immigration policies but can you tell us how different are they?
M.M.P. They are very different because during the Obama administration, there were enforcement priorities so that non-criminal noncitizens were not targets for deportation as they currently are. Under the Trump administration, any undocumented person is facing removal (deportation) and this has even applied to DACA recipients.
2) Is it true that Obama’s immigration policies, with more than 2 and half million people deported, set the basis for the new administration?
M.M.P. The only part of the Obama administration’s actions I see used in the Trump administration is the designation of the banned countries.
3) Donald Trump talks about giving more leeway and discretion to the immigration agents. We could see that regarding the asylum’s adjudications. However, the cases denied by immigration agents are going to be reviewed by immigration judges.
M.M.P. It depends on the kind of case. If expedited removal, no.
4) Of course, but f so, don’t you think that this policy is going to clog the system?
M.M.P. Not if they follow through on the expansion of expedited removal. Unfortunately, there is no judicial review of expedited removal.
5) Can you explain to us more about the concept of city sanctuary, campus sanctuary, and taking refuge in church as a sanctuary?
M.M.P. Sanctuary is a term, which is really not defined in immigration law. What this is about is the concept of non-cooperation with the immigration authorities, this applies to cities and campuses. A church is a different matter, as there are longstanding policies against immigration enforcement in churches. Furthermore, church sanctuary is a very old concept. As to states and localities, the new administration has threatened to take away funding from so called sanctuary cities. Just recently, a federal court in San Francisco enjoined the administration on this.
6) Donald Trump in his congressional address talked about the creation of a new government agency for victims for crimes by immigrants. Is this constitutional?
M. M. P. This is an office within the Department of Homeland Security. It is called VOICE – victims of immigrant crime engagement office. Not sure what constitutional grounds there would be do challenge it.
7) He also says that countries like Canada and Australia have a Merit Immigration System. What is a Merit Immigration System?
M.M.P. They use points to give higher priority to certain immigrants.
8) What kind of immigration system do we have in the USA?
M.M.P. Ours is a combination of family based and employment based with a sprinkling of diversity lottery and humanitarian grounds.
9) Immigration has a great backlash processing petitions. Do you think that people who are in other countries and waiting for their visas to be approved have reason to fear that a new set of rules would delay or even cause a rejection in their application process?
M. M. P. Unfortunately yes, with the new priorities, and the addition of extreme vetting, there may be delays. Not sure about rejections, since no immigration law has changed. It has all been executive action.
10) The US immigration policies have historical precedents to act against certain immigrant groups. We had the Chinese Exclusion Act of 1882 and the Control Immigration act of 1924 that tried to limit the Italian immigrant setting quotes of national origin. Is it possible that those dark times could be repeated?
M.M.P. Unfortunately yes, we see this with the executive order banning travel from certain majority Muslim countries.
11) From 1929 to 1936, under the government of Herbert Hoover, the Federal government in coordination with the local jurisdiction started what is called the repatriation of people of Mexican origin. According to the statistics, around two million people were removed and more than sixty percent were American citizens of Mexican ancestry. Can we fear something similar happening today?
M.M.P. Unfortunately yes, the new executive orders call for the hiring of more immigration agents in an expedited fashion.
12) One of the mechanisms used by the government was to make the people sign a document called Voluntary Repatriation that seems very similar to voluntary relinquishing of the green card when a person signs the form I-407. Is there any legal recourse against these so called ‘voluntary’ acts?
M.M.P. It is very difficult to undo what appear to be voluntary acts, what is easier is to have an educated noncitizen who knows his or her rights and does not sign documents without knowing what he or she is signing. Know your rights campaigns are very useful in this respect.
13) Once you have been detained by immigration in the port of entry, what kind of rights do you have? The right to remain silent? The right to ask for legal counsel? The right of privacy?
M.M.P. This area of law is one with a lot of nuances, depending on whether a person is in custody or not, and whether there is a search or not. These are fact intensive inquiries. Because it is at the border, I believe deference is given by courts to actions of immigration agents.
14) According to the media, Muhammad Ali’s son was detained and questioned about his religion while he was trying to enter to The USA even though he is a US citizen? Can a US citizen be detained, be legally questioned about his/her religion or have his/her cellphone checked at the port of entry?
M.M.P. I am aware of this happening, see the following policy from the Department of Homeland Security about the search of laptops. There is also a new tearsheet given to those whose devices are taken:
15) What are your comments regarding the last executive order that banned entry immigrants from six muslin majority countries?
M.M.P. Two federal courts have enjoined this executive order, even the amended one, on constitutional grounds. I think the courts are correct.
By Jhon Sanchez
María M. Pabón is an expert in immigrants’ rights (including the education of immigrant children), immigration law and diversity/multicultural matters in the legal profession. She also focuses her research on issues concerning Latinos, race and the law, and the status of women lawyers. She has published articles on topics such as the rights of immigrants in the U.S., Spain’s immigration laws, undocumented workers in the U.S. and Argentina, as well as the impact of immigrant nurses on the nursing shortage in the U.S. She has done research in the areas of family law and inheritance law as it pertains to those who are not U.S. citizens. In 2013, Hispanic Business named her one of the 50 most influential Hispanics in the U.S. Also in 2013, New Orleans CityBusiness named Pabón a Woman of the Year and the New Orleans Living magazine recognized her as a top Latina innovator.
Jhon Sanchez: A native of Colombia, Mr. Sanchez immigrated to the United States seeking political asylum. He received a law degree from I.U. and an MFA from LIU. Currently, Mr. Sanchez is an attorney and enjoys traveling and cooking in his spare time. His publications in 2017 are “The Vinegar Scent of Books,” available in Swamp Ape Review, “Acacia and the Thief of Names,” available in Existere and “A Cab Fare to John Lennon’s” available in Foliate Oak Literary Magazine. His work has been nominated for The Best of the Net Anthology 2016 and for a Pushcart Prize in 2015 and 2016. He was also awarded the Newnan Art Rez Program for summer of 2017.