From the Immigration Attorneys at Kolko & Associates, P.C., an open letter to our clients, their families and our community:
To start, we never expected to have to write this kind of a letter to you.
We have dedicated our lives to advocating for the immigrant community. Our work as immigration lawyers helps families stay together; U.S. businesses to grow and maintain their workforce; foreign entrepreneurs to start businesses in the United States that in turn, help our economy; and refugees fleeing persecution in their home countries to find a place of safety. Our work ensures that people facing deportation are not subject to unnecessary or lengthy detention and that they have basic due process of law in their immigration removal proceedings.
Because of what we do for a living, we see on a daily basis the amazing beauty of the United States of America. We see the rich and diverse cultures, languages, traditions and work ethic that each immigrant group brings to our nation, and we understand how our nation has been enriched by the contributions of various immigrant groups.
We recognize that we, like the vast majority of Americans, hail from immigrants ourselves, most of us just a couple generations removed. We know and appreciate the stories of our parents’ and grandparents’ hard work and sacrifice so that the next generation could have a better life in the land of the free and home of the brave, the big melting pot, the United States of America.
Because of all of this, we did not believe that our fellow citizens would vote to elect a person who ran his campaign based in large part on demonizing the immigrant community. We were wrong and here we are. On November 9, 2016, the United States elected Donald J. Trump, a man that ran his presidential campaign on an anti-immigrant platform, to serve as President of the United States.
Immigrants – people with lawful immigration status, undocumented immigrants, and people who fall somewhere in the middle – are all very understandably concerned about what the next four years holds. We are also very concerned. But, we wanted to take this important moment to provide some information to hopefully help settle some of the fears and anxiety that we have been hearing.
1. All immigrants are entitled to due process of law.
First, it is very important to understand that regardless of who our President is, the United States is a nation of laws.
These laws guarantee that every person is provided due process of law. Therefore, President Trump cannot simply “round-up” immigrants in large numbers and deport them without a hearing. Each individual, including the undocumented immigrant, in the United States is guaranteed due process of law, and a right to a court hearing in front of an immigration judge before he or she can be removed from the United States.
2. The Immigration and Nationality Act (INA) is the law and remains the law.
Second, (and again) we are a nation of laws. We are a nation of laws so that one person cannot just undo protections with the sweep of a pen or without following the Constitution.
Specifically, we have the Immigration & Nationality Act (INA) that governs our immigration system. The INA is very complex and provides the rules and criteria for the manner in which immigrants can apply for U.S. Citizenship, lawful permanent residence (Green Cards), non-immigrant temporary work visas, temporary tourist visas, asylum, relief from deportation or removal, employment authorization documents, temporary protected status (TPS), and much more.
The INA is the law. The INA is not going anywhere without changes approved by Congress. No president can simply sweep the INA aside and just do what he pleases.
In order to change the INA, the U.S. Congress has to act. Both the House of Representatives and the Senate must agree on the changes and propose a bill for the President to sign. As we have seen in recent years, it is very difficult for Congress to agree on what the changes to the INA should be, and therefore, we saw immigration reform bills stall and fail in both 2007 and 2013.
While it is true that President Trump will have a Republican Senate and House of Representatives to work with, and we might see a reform or changes to the INA, we do not yet know what those changes will look like. It is also vital to remember that it takes 60 votes to move a bill through the Senate, and the Republicans do not hold 60 or more seats.
At this time, we do not know if any approved changes will actually be bad for the immigrant community, how much real impact the changes might have, or the timing of any changes. This is a process that will be drawn out over years, and we will have to evaluate this as Trump and the Congress reveal what their immigration policy priorities will be.
To our clients with approved or pending cases – whether they are naturalization cases, green card cases, waiver cases, H-1B, O-1, E-2 visas, asylum cases or any other type of case; each of these cases are governed by the existing law in the INA. Your cases remain under the current law and they will be considered and adjudicated according to the existing immigration law. Unless you have done something to suddenly make yourself ineligible for the benefit for which you are applying, your status or immigration case should move forward regardless of the person who is serving as our president.
3. We are concerned about our DACA Clients.
Third, to our DACA Clients: the wonderful, strong, determined Dreamers. Those of you with Deferred Action for Childhood Arrivals (DACA) know that DACA is a benefit that is only a temporary reprieve from potential removal from the United States, that also carries the benefit of employment authorization.
The DACA program was implemented by President Obama in 2012. Donald Trump has stated that this program will be revoked. We do not yet know what this means. It is yet to be seen whether President Trump will eliminate the DACA program on January 20, 2017, discontinue new people applying for any DACA benefits, or allow those with approved or pending DACA cases to continue.
However, given Donald Trump’s rhetoric, we are concerned that those currently on DACA may suddenly be without employment authorization as soon as the President-elect takes office.
We encourage every individual with DACA who may be eligible for lawful permanent residence or other immigration benefits, to promptly consider these options immediately.
Those currently on DACA whose authorizations will expire within the next 5 months, may choose to renew DACA. Since we do not yet know for certain if or when DACA will be terminated, it is possible that continuing DACA status is a good move. This is a decision that should be discussed with your attorney.
For those that are DACA-eligible but who have not yet applied, we recommend that you consult with an attorney right away to discuss the potential risks and benefits.
Many DACA clients and their families are also concerned about the risks of deportation from this country. The truth is that there is a risk. It is possible that DACA could be revoked and these individuals could be placed in immigration removal proceedings. But, was we indicated above, each person has the right to due process, the right to hire an attorney, and will be entitled to a hearing in front of an immigration judge. Because of the small number of immigration judges in the United States, and the large number of DACA recipients, and the current backlog of cases in the immigration courts, the deportation process is likely to take several years or longer.
In the coming weeks and months, we will know more as President-elect Trump reveals what his policy priorities actually will actually be. For now, we will continue to monitor the situation.
4. We are concerned about our Clients who received Prosecutorial Discretion (PD) and have Administratively Closed Removal cases.
Fourth, for our clients whose removal cases were administratively closed by the Immigration Court between 2011 and the present time. As you know, these cases are essentially “on-hold” at the U.S. Immigration Court.
It is possible that under President Trump, these cases could be reopened and removal proceedings could begin again. Again, we do not know whether this will happen. For now, your cases remain administratively closed, and you should be able to continue with life as “normal.”
Importantly, as we discussed above, if your removal case is reopened, you have the right to due process and a full and fair hearing in front of an immigration judge. If removal proceedings do start again, they will likely take several years to move forward because there are simply not enough immigration judges currently to hear all of these cases.
We understand that for many immigrants, the political structures in their own countries do not provide the same types of due process protections that we have as a right under the Constitution in the United States. These due process protections have not gone away with the election of one person. They remain, and, as experienced immigration lawyers, we remain dedicated to ensuring that you are provided with these protections each and every step of the way.
We will not stop working for you. We understand that our work is now more important than ever. We are here. We are your advocates. We will fight to make sure the laws are followed and your rights are respected. We will help your voices be heard. We will help your stories be told.
Sincerely,
Kolko & Associates, P.C.
Immigration Lawyers and Counselors at Law, Denver, Colorado, USA
David Kolko, Jennifer Casey, Abbie Johnson, Jessica Bunnell and Anya Lear
