February 10, 2017

Panelists urge help for those facing removal at immigration program on Trump

The panel was billed as the “The First 100 days: Immigration at a Crossroads, Lives in the Balance.” But the first 15 days of the presidency of Donald J. Trump generated enough discussion to fill out a 90-minute program.

Immigration experts at the ABA Midyear Meeting discuss current legal issues resulting from the new administration's policies during the program “The First 100 days: Immigration at a Crossroads, Lives in the Balance”


Four immigration-oriented lawyers broke down the three executive orders issued so far by President Trump related to immigration, and offered a peek into the future, saying there were four additional potential orders that have been leaked but not signed. The panel discussion Feb. 4 was part of the ABA Midyear Meeting in Miami and attracted more than 50 attendees.

With a sense of urgency, the immigration experts also called for lawyers to provide pro bono work to get in the way of what Mary Meg McCarthy called “three of the harshest executive orders in American history.” More than 4,000 lawyers flooded airports after Trump issued an executive order on Jan. 27 that sharply restricted entrance of visa holders from seven predominately Muslim countries.

“We really need to get as many reinforcements as possible to uphold the rule of law,” said McCarthy, co-chair of the sponsoring ABA Commission on Immigration and the executive director of Heartland Alliance’s National Immigrant Justice Center. She added the situation is “worsening by the hour. The president has made his intentions clear as has the private bar.”

Since inauguration day, the president has signed three executive orders dealing with border security, interior enforcement and terrorism, triggering a rapid series of legal developments and widespread street protests. ABA President Linda Klein issued a statement late last month, emphasizing the ABA’s “interest and responsibility to protect the rights guaranteed by the Constitution and ensure the sanctity of the rule of law.”

The panelists said more than 50 lawsuits have been filed since the Jan. 27 order, including one in the state of Washington that led to a U.S. District Court judge on Friday halting temporarily the ban related to travel from the seven countries.

While the executive order on border security has generated the most attention, Esther Olavarria, who recently left the U.S. Department of Homeland Security where she was senior counselor to Secretary Jeh Johnson, raised strong concerns about the interior enforcement order. “It has really incredible, sweeping belligerent language treating all illegal immigrants as national security and public safety threats,” said Olavarria, a former aide to the late U.S. Sen. Edward Kennedy, D-Mass.

With more than four dozen legal suits and slews of temporary restraining orders dotting the nation, Wendy Wayne observed “there is confusion around the country because of the different TROs and what do they mean.” Wayne, director of the Immigration Impact Unit at the Committee for Public Counsel Services, volunteered at Boston’s Logan International Airport after the Jan. 27 order to help returning immigrants. She said another major need now is help for immigrants dealing with removal proceedings.

The executive order related to interior enforcement, she explained, threatens to make “everyone a priority” who is in the system now. Currently, the immigration caseload overwhelms the 300 or so immigration judges, and in practice the focus has been on those cases where the individual poses either a danger or has committed serious crimes.

The fear is that the case for minor offenses, such as an undocumented person who might get a traffic ticket, will get high priority status. In the coming months, she said, the country will “likely see an increase in expedited removals” and that defendants in immigration cases, which are civil proceedings, have no right to counsel.

The third panelist, Dana Leigh Marks, a U.S immigration judge in San Francisco, carefully walked through her presentation, primarily discussing the landscape and lack of resources available to handle many of these cases. She specifically noted that she was appearing as the president of the National Association of Immigration Judges and not in her role on the bench.

Marks observed that immigration law might be second to tax law in its complexity, but “there is no Turbo Tax for immigration law.” She suggested that the executive orders in many ways conflict with current statutes, and that it could take a lengthy period to sort out what is legal and constitutional. The approximate 300 immigration judges across the country face a backlog of 533,000 cases, she said.

“We have been saying for years that we have been dramatically under-resourced as it takes four to five years for a case to get through the system,” she said. In her case, she explained, she is handling 2,500 cases and is supported by one half-time law clerk.

“We have to think about those realities, and how this is going to be done,” Marks said of the president’s executive orders.