An undocumented mother and father walk with their two sons in San Lorenzo, Calif. on April 9, 2020. (Liz Hafalia/The San Francisco Chronicle via Getty Images)
Trump has already named two individuals who will have key positions in his new administration: Stephen Miller as his deputy chief of staff and Thomas Homan as his “border czar.” Both helped form immigration policies during Trump’s first term, including the “Remain in Mexico” program, which forced migrants seeking asylum to wait for their court dates in Mexican — rather than American — territory, and the “safe third country” agreements requiring migrant seekers to first request asylum in countries like El Salvador or Guatemala.
California has 1.8 million residents who lack permanent legal status, according to the latest available research — roughly 5% of people in the state. Eight percent of California households include a family member without a permanent legal status. Many are now feeling anxiety, confusion and fear as Trump continues to threaten deportation for people lacking permanent legal status — something that could separate thousands of families.
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“At this point, we have nine weeks to get ready for what I would say is going to be a much worse version of what we’ve seen before,” said Huy Tran, executive director of Services, Immigrant Rights and Education Network (SIREN), an organization with offices in San José and Fresno that offers legal aid, trainings and leadership development to immigrant communities.
To better understand what lies ahead and what undocumented and “mixed-status” families can do right now, we spoke to immigration attorneys working with legal aid groups throughout the state. Keep reading to hear from experts, keeping in mind that each immigration situation is unique — and that for specific recommendations, it is best to talk to a licensed attorney about your individual case.
Who would first be impacted by Trump’s immigration policies?
Trump may make a lot of promises on the campaign trail, but it’s important to question what he actually can do as president, said Lourdes Martínez, co-directing attorney of the immigrants’ rights practice at Centro Legal de la Raza, a legal services nonprofit in Oakland.
“The truth is,” Martínez said, “big changes to the law move very slowly.”
Something she reminds her clients is that Joe Biden is still the president until Trump’s inauguration on Jan. 20. Until then, Trump can’t make any changes to immigration policy.
And once Trump is in office, she added, he will most likely focus on things he can change quickly without needing to go through Congress. Martínez said these would include security along the U.S.-Mexico border or the way that the federal government handles active removal proceedings (when a judge decides if an immigrant who lacks permanent legal status should be deported from the country.)
“That’s where lawyers are going to focus,” she said. “People who already have a case in court, especially those who are in removal proceedings.”
How do you know if you are in a removal proceeding?
The Executive Office of Immigration Review (EOIR) at the Department of Justice manages immigration courts, and if you’re in an active removal proceeding, they should have sent you a letter in the mail with the details of your next hearing.
If you haven’t received a letter from EOIR, you can call the immigration court managing your case and have your Alien Registration Number (A-Number) ready — it’s a number that you can find on documents you have received from U.S. immigration officials. You can find the contact information of the court managing your case by entering your A-Number on EOIR’s website.
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“If you have never come in touch with immigration law enforcement, like Immigration and Customs Enforcement, you are likely not in the system,” Martínez said. “Most of our clients here in the Bay Area with new hearings are most likely people that were detained at the border and they’ve made their way here. They have a history of detention. They know they were detained. And they’ll have some paperwork.”
In active removal proceedings, a Trump White House could exert influence upon which cases are given priority. According to the National Immigration Law Center, this is called “prosecutorial discretion”: the power to decide whom to investigate, arrest, detain, charge and prosecute. According to data from Immigration & Customs Enforcement (ICE), there are over 662,500 noncitizens with criminal histories on this agency’s list of pending or ongoing cases, and that includes both detained and non-detained immigrants.
In other words, if the Trump administration changes which cases are prioritized, that only affects people who are already going to court for an active removal proceeding. But Martínez said that the huge media attention Trump gets from his threats against immigrants without permanent legal status ends up creating a perception of fear — and that’s by design, she said.
“The federal government is more likely going to do the things that can get the Trump administration visibility, so he can show off to his supporters that he’s doing what he said he would do,” she said. “Most likely what we might face is instead a culture of terror against the immigrant community … they only have to detain a few people for the fear to really reverberate.”
Even if you’re not in an active removal proceeding, experts still recommend checking in with an immigration attorney on what your best options are, depending on your specific situation.
If you’re on DACA, what can you do?
If you are currently one of the more than 800,000 people nationally on DACA and are eligible to renew this protection, advocates recommend you talk to your attorney as soon as you can about a DACA renewal.
This is because it’s not just the incoming Trump administration that is looking to change — or eliminate — the program; a federal court that has gained a reputation for hardline immigration decisions is currently reviewing the legality of DACA. With this in mind, you may want to talk with a lawyer about if there’s anything else related to your situation that could be turned into a lawful status, Martínez said.
Remember: According to the federal government, anyone who has DACA entered the country unlawfully. Having an “unlawful entry” on your record makes it very difficult for DACA recipients to then gain permanent status through marriage or employee sponsorship.
But “DACA does have provisions that allow people to get advance parole: when [recipients] are able to travel outside the country for very special reasons, such as educational purposes, medical emergencies or going to visit a family member who is about to pass away,” she said.
And if you can obtain advance parole, Martínez said, that could potentially improve your chances of improving your situation. If you leave the country, fulfill the purpose of that travel and then reenter on your advance parole, “you are no longer without lawful entry,” she said.
Having a lawful entry on your record may help when applying for a lawful status, she said. “If there are DACAmented people out there who could be eligible for this advance parole,” Martínez said, “this would be the time to do it.”
Young immigrants and supporters walk holding signs during a rally in support of Deferred Action for Childhood Arrivals (DACA) in Los Angeles, California, on Sept. 1, 2017. (Frederic J. Brown/AFP via Getty Images)
How to prepare for Jan. 20 if your family is mixed-status
A very common situation immigration attorneys see is mixed-status families — when either a parent or spouse lacks permanent legal status while others in the family are citizens or permanent residents.
Sometimes, family members with legal status can petition for direct relatives without permanent legal status, said Gilberto Nicolás González, immigration staff attorney at La Raza Community Resource Center in San Francisco. “If you know anybody who’s in your direct family who has any sort of legal status and you don’t, then please talk to them to see if they would be willing to petition for you,” he recommended.
González adds that there are some small things that families can do to help stay together if a relative is at risk of being deported.
“It’s important for people to know that they should not publish their locations online,” he said, adding that immigration officials can work with local law enforcement to use information available on social media to track down immigrants who have a deportation order.
Families attend a workshop for immigrants without permanent legal status in Coachella, California, during the first Trump term on Feb. 24, 2017. (David McNew/AFP via Getty Images)
Most cities in the Bay Area and the whole state of California have adopted what is referred to as “sanctuary” laws when local and state officials do not cooperate with federal immigration law enforcement. However, advocates stress that these policies are not perfect shields. That’s why they remind folks to avoid situations where they could end up arrested or questioned by law enforcement.
Families should also prepare for the worst, said Cathy Sakimura, executive director of Legal Services for Children, a San Francisco-based legal aid organization that primarily serves minors who entered the country without their parents. One difficult question adults with children who are U.S. citizens should consider when making an emergency plan is, she said, “Who should care for children if parents are deported?”
“Parents may be able to fill out a standby guardianship, for example, or some other kind of estate planning documents around nominating who they would want to take care of their child if something were to happen to them,” Sakimura said. She said that it’s best to talk to a lawyer now about preparing legal and financial documents and how to address specific needs children may have if parents are suddenly placed in the custody of immigration officials.
At training sessions, SIREN hands out small red cards that explain an individual’s rights during an encounter with ICE.
Even when you are face-to-face with an immigration official, said Tran from SIREN, “the Constitution still applies — and that’s what the red cards are based on.”
“These are the rights that every person within the United States can utilize because these are rules and expectations that are placed on law enforcement,” he explained, adding that the protections in the Constitution apply regardless of your immigration status.
… and by your community
There are many lessons from the first Trump administration that immigrants lacking permanent legal status — along with their families and advocates — can apply now, Martínez said. “One lesson learned is the importance of community action at the local level.”
“Living in terror is very detrimental to our mental and emotional health,” she said. “We really cannot discount the importance of being in community, to build support systems that are pragmatically really effective, like sanctuary policies — but also the unseen part of life, the emotional and psychological impact of this.”
“The reality is that we are bracing for changes that will not be easy to deal with,” Martínez said. “Ultimately, the real power is with the people.”
“I know that it’s really hard to believe that when you’re an undocumented person, but the real power is really your internal resources to withstand these attacks of fear and not let yourself be in a state of terror.”
This guide includes reporting from KQED’s Dana Cronin and the Associated Press.
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