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Immigration Corner | Immigrants with criminal charges

Published:Tuesday | November 7, 2017 | 12:00 AM
AP US President Donald Trump

One thing that was made clear by the candidacy of Donald J. Trump for president of the United States (US) was that immigration was going to be at the forefront of his platform. With his inauguration on January 20, 2017, Trump proceeded the following week to issue several executive orders (EOs) designed to change the US immigration landscape. The most famous of the EOs and the one that received the most media coverage was the so-called 'Muslim ban'.

The orders served to plunge the immigrant community in the US, and their supporters, into chaos, confusion and uncertainty. There are lawful permanent residents of the US who have committed minor crimes during their time in America, and some in the undocumented community who have also broken state and federal laws. Additionally, those persons who are present in the US without legal status feared being taken into custody and removed from the States.

In the Obama administration, immigrants were deported at a rate far greater than in the previous Bush administration. However, for the most part, the deportations did not include persons who had families in the US and whose run-ins with the law were minor in nature. Also, the undocumented who did not have a criminal history were not deemed a removal priority and, in particular, those with US families were released and monitored by US Immigration and Customs Enforcement.

The two EOs that are of concern to the wider immigrant community in the US are:

1. 'Border Security and Immigration Enforcement Improvements'.

The famous or infamous wall along the Mexican border with the US was also a hallmark of Trump's candidacy and the cornerstone of this EO. This EO also included directions to the Department of Homeland Security (DHS) to expand expedited removal (ER) - previously, DHS policy had limited ER to within 100 miles of the US border and within 14 days of a person's arrival into the US. This EO expanded ER to anywhere within the US and within two years of a person's arrival.

The EO also instructed DHS to keep non-citizens in custody pending the outcome of their immigration matter, and included direction to treat all persons who entered the States illegally as a threat to the US.

2. 'Enhancing Public Safety in the Interior of the United States'.

This second EO had the most far-reaching effect because it made everyone who is in the US without lawful status vulnerable to removal, whether or not they had family in the US or any criminal charges - no matter how minor. It sought to enforce illegal entry into the US as a crime and to punish cities that refused to detain the undocumented after they served their sentences or even after they posted bond - so-called sanctuary cities.

In the wake of the changes, it is important that immigrants with criminal history - both legal and undocumented - consult with an immigration attorney as to their exposure to removal. The law is complex, but some may have relief from deportation. Those who entered illegally, especially those who re-entered the country illegally after a previous deportation, are especially vulnerable. Illegal re-entry can result in incarceration in US federal prison and deportation with a permanent bar to legally returning to the US.

- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal, international and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida.