Frequently Asked Questions About Immigration
Update, August 2020: for a visual summary of changes in immigration policy under the Trump Administration, see "The Invisible Wall Under Cover of Covid," here.
1. Who are the Undocumented?
2. What does it take to obtain legal status in the U.S.?
3. How has immigration policy changed under the Trump administration?
4. What is happening with children and families at the border?
5. What is DACA?
6. Undocumented immigrants: do you have rights?
1. Who are the undocumented?
There are an estimated 10.5 to 12 million undocumented people in the U.S. At least 62% have a child who is a U.S. citizen. At least 13% have a spouse who is a U.S. citizen.
At least 16.6 million people in the U.S. live in a mixed status household—a household with at lea
2/3 of all undocumented immigrants have been in the U.S. for a decade or more.
2. What does it take to obtain legal status in the U.S.?
a. Green cards give authorization to work: only 140,000 green cards are available each year. Only 5,000 are available to immigrants who work in jobs that don’t require a college degree. To obtain a green card, undocumented immigrants must return to their country of origin and apply at a U.S. consulate—they cannot apply within the U.S.
b. Family Sponsorship: immigrants who have become U.S. citizens, or lawful permanent residents can petition for a family member to be admitted to the U.S. This has been one of the main ways that people could migrate here lawfully. But there are less than 500,000 family sponsorship visas available, so the waiting period for family sponsorship can take years, or even decades to be processed or approved.
See the American Immigration Council website for more details
c. U-Visas can be awarded to immigrants who are victims of crimes and who cooperated with law enforcement in investigating or prosecuting the crime. The petition must be certified by a federal, state or local law enforcement agency.
United States Citizenship and Immigration Services: https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status
d. Asylum: to receive asylum, a person must prove they have a credible fear of returning to their own country and that they meet the accepted criteria. The United States acknowledges the following criteria for asylum—government persecution on the basis of: race, religion, nationality, politics or membership in a targeted group. Undocumented immigrants must must flee their country of nationality or residence and apply for refugee status in a second country before entering the U.S. under the U.S. Refugee Resettlement Program.
e. Temporary Protected Status (TPS): TPS is a special category created in the Immigration Act of 1990 for people who cannot be deported back to their country of origin because of war, environmental disaster or other emergency conditions. It is only for people from countries that have been approved by Homeland Security. In the U.S. today, citizens of the following 10 countries could be considered for TPS.
The Trump administration has threatened to end TPS status for citizens of El Salvador, Haiti, Nicaragua and Sudan. See Section 3a for details.
3. How has immigration policy changed under the Trump Administration?
a. The Trump administration has criminalized all unauthorized immigration. Although unauthorized immigration has been prohibited under federal law since 1929, it was considered a civil, not a criminal, offense. Trump also eliminated “prosecutorial discretion,” meaning that government officials, from immigration enforcement agents to immigration courts, could not prioritize detaining, trying and deporting individuals who had committed serious crimes--like felonies involving violence-- but instead had to detain or deport anyone without legal authorization to be in the country.
b. The Trump administration ended “catch and release:” Under previous administrations people who were apprehended crossing the border could be released into the United States until their their immigration hearing. In September 2019 this policy, which the Trump administration calls “catch and release,” was terminated. If someone is apprehended they will be: (1) returned to their country of origin; (2) detained until their case can be decided in immigration court; or, (3) if they are asking for asylum, they will be sent to Mexico to wait for their case to be heard.
c. The Trump administration is trying to prevent immigrants with legal status to petition to bring their family members. Family Unification has been the bedrock of the U.S. immigration system since the early 20th century. Calling this "chain migration” the Trump administration is shifting the emphasis of the U.S. immigration system from family reunification to a “merit based” point system that prioritizes people with education and employment qualifications that the government deems desirable. In practice, this policy favors immigrants from Europe, Canada and parts of Asia, while working against the majority of immigrants from Latin America and Africa.
d. The Trump administration ruled against expanding the criteria for asylum. Prior to Donald Trump’s election, the U.S. began to expand the criteria for obtaining asylum to include domestic violence and gang violence. Under Attorney General Jeff Sessions, domestic violence and gang violence were eliminated. Sessions reversed an immigration appeals court ruling that granted asylum to a Salvadoran woman on the grounds that she had been abused by her husband and could not safely return to El Salvador. Sessions wrote, “An alien may suffer threats and violence…for any number of reasons related to her social, economic, family or other personal circumstances. Yet the asylum statute does not provide redress for all misfortune.” According to the New York Times, this ruling “made it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence.” (New York Times, June 11, 2018).
In July 2019 the Trump administration issued a policy forbidding immigrants from seeking asylum in the U.S. unless they could prove they had first applied for and been denied asylum in the country they passed through on the way (people migrating from El Salvador must request asylum in Guatemala; people migrating from Guatemala must request asylum in Mexico). The Supreme Court upheld the policy on a temporary basis in September 2019 while it is being challenged in the lower courts.
In November 2019 for the first time, the Trump administration proposed a fee of $50 for asylum seekers, plus an additional $490 work fee for immigrants in the U.S. awaiting the result of their asylum applications.
Voice of America News: https://www.voanews.com/usa/americas-shifting-asylum-policies-explained
e. TPS: In September 2020, a Federal Appeals court ruled that the Trump administration can end TPS for people from El Salvador, Haiti, Nicaragua and Sudan. Trump has been trying to end the program for people from these 4 countries since 2017. In 2018 a Federal District Court blocked the government's efforts. The new decision by the 9th Circuit Court of Appeals allows the government to go ahead and deport over 300,000 immigrants and over 200,000 of their children who were born in the U.S.
4. What is happening with children and families at the border?
In May 2018, the Trump administration formalized a policy that systematically separated children from their families at the border. This policy violates the 1997 Flores Settlement agreement, which limits immigrant child detention to 20 days. Under the new policy, Immigrants caught crossing the border without documents were charged as criminals. Their children were designated as “unaccompanied aliens” and turned over to the Office of Refugee Resettlement. Attorney General Jeff Sessions called this a ‘zero-tolerance policy’ and claimed it would deter prospective immigrants from attempting to enter the U.S.
Over 69,000 children were detained in 2019--more than anywhere else in the world, according to the United Nations, and a 42% rise from the previous U.S. fiscal year. The detained children were held for longer periods away from their parents than ever before, despite the known trauma caused by the stress of detention and long-term physical and emotional impact it has on children.
Many of the children have been deported (some without their parents). As of November 2019, some 4,000 were still in federal custody. According to the American Academy of Pediatrics:
In accordance with internationally accepted rights of the child, immigrant
and refugee children should be treated with dignity and respect and should
not be exposed to conditions that may harm or traumatize them. The
Department of Homeland Security facilities do not meet the basic standards
for the care of children in residential settings.
Children waited, often for months, in detention facilities that lack basic services like adequate food or sanitation. Children often sleep on bare floors, in cold cages, with only a single blanket. Children “were going unfed and unwashed, crammed into overcrowded cells with contagious diseases."
In August 2019 a federal judge blocked a Trump administration rule that would have permitted children to be detained indefinitely.
5. What is DACA?
DACA (Deferred Action for Childhood Arrivals) is a program that protects young immigrants from deportation for 2 years. To receive DACA, young immigrants applied to the United States Citizenship and Immigration Services (USCIS) and, if accepted, received social security numbers and work permits. DACA was implemented under the Obama administration by executive order; in September 2017 the Trump administration filed an order to eliminate it. Civil rights and immigrant rights organizations went to court to protect DACA.
There are an estimated 700,000 young DACA recipients (Dreamers). To fulfill the criteria for DACA, immigrants had to prove that:
* they were under 31 years of age as of June 15, 2012;
* they first came to the U.S. before their 16th birthday;
* they have lived continuously in the U.S. from June 15, 2007 until the present;
* they came to the U.S. without documents before June 15, 2012 OR their lawful status expired as of that date;
* They were currently studying in high school, had graduated from high school or received a GED, or graduated from a technical school; or had served in the military or Coast Guard;
* They had not been convicted of a felony or certain misdemeanors
University of California, Berkeley: https://undocu.berkeley.edu/legal-support-overview/what-is-daca/
Immigrant Legal Resource Center:
On June 18, 2020 the U.S. Supreme Court found that the Trump administration's attempt to end the DACA program was not legally justified. The court instructed the Trump Administration to immediately begin accepting new DACA applicants and to process applications for renewal for people who had previously received DACA. Instead, on July 28, the administration defied the Court, arguing that its decision had "no basis in law." Acting head of Homeland Security, Chad Wolf, announced the government would reject all first-time requests for DACA and change the period of time for which DACA can be renewed. Previously, recipients received DACA for two years, and then had to reapply
to renew their DACA status. That period has now been changed to one year.
The administration is continuing to seek out ways to end the DACA program
6. Undocumented Immigrants: Do You Have Rights?
Yes, you do! Undocumented Immigrants do not have all the rights possessed by U.S. citizens, but there are some rights that are guaranteed.
Rights that U.S. Citizens Have that Undocumented Immigrants Don't:
Undocumented immigrants do not have the right to an attorney if they are put in removal proceedings. The government is not required to provide you with a lawyer. You can be represented by an attorney, if you can afford one, or if one is available to provide services for free. You can find further information about free or low-fee services in our region here.
Undocumented immigrants are not tried in civil courts. Their cases are heard by a special “immigration court” and an immigration judge. There are no juries in immigration court cases. Because there are large backlogs and bail is expensive, and seldom granted, immigrants often spend months or years in detention awaiting trial.
Rights that Undocumented Immigrants Do Have:
Undocumented immigrants do possess two important rights under the 4th and 5th Amendments to the Constitution. These rights are available to everyone who lives in the United States, with or without documents. It’s important to know and claim your rights if you are involved in an encounter with Immigration and Customs Enforcement (ICE) or the Border Patrol.
The 4th Amendment restricts the government’s power to search you, your car or your home. Unless ICE or the Border Patrol has a valid warrant, you do not have to consent to a search or let them in to your home. A valid warrant should have your name on it, and should be signed by a judge, not an ICE officer. Ask to see the warrant!
The 5th Amendment gives you the right to remain silent. You do not have to speak to law enforcement, including ICE or answer their questions unless they produce a valid warrant. You can say, "I have a right to remain silent!"