Many are panicked and worried about a Trump presidency, with good reason. The next four years will undoubtedly be very difficult for all, especially immigrants. However, the United States is still a country of laws, and our Constitution as well as all the case law developed over the last two centuries, protects our civil rights and civil liberties. The Immigration and Nationality Act (INA), as well as federal regulations, provide benefits to immigrants, as well as possible relief from deportation.
For the undocumented, as well as for those permanent residents who have a criminal conviction, ICE (Immigration and Customs Enforcement) cannot just arrest you and put you on a plane back to your home country. You have a right to removal proceedings before an immigration judge. Removal proceedings often take many years to be resolved, especially recently. You have a right to contest the charges against you, and even if you are found removable from the United States for certain violations of the immigration law, you may apply for relief from removal for any benefit for which you may be eligible, including asylum, withholding of removal, withholding under the Convention Against Torture, adjustment or re-adjustment to permanent residency, as well as numerous waivers, depending upon whether you meet the requirements.
Even if you should lose in immigration court, you have two levels of appeal, first, to the Board of Immigration Appeals (BIA), and second, to the federal circuit court of appeals. Thus, you will have ample opportunity to defend your case to stay in the United States. Heck, after four years President Trump may be out of office and your case is still pending.
Those who have a statutory benefit, such as H-1B status, or any of the other nonimmigrant statuses, or an approved employment or family preference petition, will continue to be eligible for that benefit, unless both houses of Congress (the House of Representatives and the Senate) pass a new bill abolishing or modifying that benefit, and the president signs it into law. This could take quite some time, maybe a couple of years or so. At this point, while the Republicans are in the majority in both the Senate and the House of Representatives, there will be 48 Democratic senators, who can filibuster and potentially block, any devastating changes to the INA by Republicans.
There are some exceptions to this, for statutory provisions that are set to expire, such as the EB-5 regional centers immigrant investor program, Conrad 30, and the non-minister religious worker provisions. These provisions are in much more danger of not being renewed, and thus those benefiting from them possibly falling out of status.
Those who are much more vulnerable are those with DACA (Deferred Action for Childhood Arrivals), which was created by executive action rather than the statute. This may be abolished at any time. However, politically, it is more difficult to take away a benefit from people who already have it, than it is to deny a benefit to people who never previously had it. Republicans have turned DACA into a political football, and most likely will try to abolish it. Another example is TPS (Temporary Protected Status). The executive declares nationals from a certain country to be eligible for TPS for a certain period because of an environmental disaster or other terrible conditions in the home country, and then can extend it or not, depending on whether conditions have improved as well as other factors.
However, those unable to renew their DACA or TPS, even if placed in removal proceedings, will have the opportunity to contest their removal from the U.S. as described above.
So do not despair, the United States still has a legal framework developed over centuries, democratic values, and a great tradition of individual rights, which will not be undone in a day.
In the coming months, I will do a series of articles to go into more depth on changes we can expect from the new Trump administration as events develop.