Trump’s immigration executive orders: The demise of due process and discretion

A screenshot of the article published on The Conversation.

By Shoba Sivaprasad Wadhia | Samuel Weiss Faculty Scholar and Founding Director of the Center for Immigrants’ Rights Clinic


The U.S. immigration code, passed by Congress in 1952, rivals the tax code in its level of complexity. The Conversation

In January, President Donald Trump signed three executive orders on immigration that have made matters more complicated for immigrants and the lawyers and advocates who fight on their behalf.

As an immigration lawyer and teacher, I have spent countless hours helping those in need and educating my community, which includes residents, educators, professors, international students and scholars, along with local government about the contents of the orders, and the guidelines released by the Department of Homeland Security in February and how they will be implemented.

Shoba Sivaprasad Wadhia

Specifically, the two orders on deportations and enforcement, both signed on Jan. 25, reveal that the government is making three major changes.

First, the orders are making virtually every undocumented person a priority for deportation.

Second, they seek to maximize existing programs that allow deportation of individuals without basic due process. This includes the right to be heard by a judge, present evidence or challenge a charge of deportation.

And third, pursuant to its Feb. 20 memorandum, DHS has rescinded most documents that offered guidance on prosecutorial discretion.

Prosecutorial discretion in immigration law refers to the choice made by a government official or agency to enforce or not enforce the immigration law against a person. It has been the central focus of my research, and is a critical component in our immigration system. Officials must choose whom to prioritize for removal because they have limited resources. The government has also recognized other compelling reasons why a person might deserve to not be deported. For example, a person without papers who has lived in the United States for several years and has family ties, steady employment or community leadership may temporarily be protected from removal.

Do Trump’s executive orders signal an end to this practice?

Everyone is a priority

DHS has rescinded the 2014 Johnson Priorities Memo, which provided a framework for determining who is a priority for immigration enforcement and articulated the factors that should be considered when making decisions about whether to deport someone.

For example, the memo instructed DHS to consider amount of time spent living in the United States and “compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.”

Now, the government is taking a hard-line approach to immigration enforcement, without explicit consideration for a person’s circumstances. The orders list specific parts of the 1952 immigration statute that target those eligible for deportation for reasons related to crimes or misrepresentation. But enforcement officials will also now target deportable immigrants who:

  • have been convicted of any criminal offense;
  • have been charged with any criminal offense that has not been resolved;
  • have committed acts that constitute a chargeable criminal offense;
  • have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
  • have abused any program related to receipt of public benefits;
  • are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
  • in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

DHS guidance does not stop with this priority list. It goes on to suggest that any person without documents might be a priority. It repeatedly states: “All of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States.”

Arguably, an undocumented parent living in the United States for several years and taking care of children who have formal or permanent immigration status, or United States citizenship, could be targeted as a person “in violation of the immigration laws,” whereas before this same person would have more clearly been eligible for prosecutorial discretion and not been labeled as a priority. Similarly, a student who overstays her visa and then jaywalks may be treated as an enforcement priority because jaywalking constitutes a chargeable offense.

The cumulative effect is fear that everyone is a priority.

Despite major changes to enforcement, the guidance from DHS suggests that individual prosecutorial discretion may be exercised on a case-by-case basis, and preserves three policies relating to enforcement.

One pertains to “sensitive locations” and instructs DHS to avoid enforcement in places like schools, places of worship and hospitals.

The second is a guideline on granting parole to certain arriving asylum seekers after a “credible fear” interview has been conducted. When an asylum seeker is “paroled,” she is released from detention and able to pursue her asylum claim outside of custody.

The final memo that is still intact is the Deferred Action for Childhood Arrivals. DACA enables qualifying noncitizens who entered the United States at a young age, often referred to as “Dreamers,” to apply for protection from deportation and work authorization.

While I see the preservation of these guidelines as positive, the overriding message of the executive orders and implementation memos is one of speedy enforcement without discretion or due process.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Pennsylvania State University. This article was originally published on The Conversation. Read the original article.

Counting 11 million undocumented immigrants is easier than you think

A screenshot of The Conversation article published online.

A screenshot of the original article published on

Jennifer Van Hook, Pennsylvania State University

News organizations widely report that there are 11 million unauthorized immigrants living in the United States. But where does this figure come from?

Donald Trump has falsely asserted: “It could be three million. It could be 30 million. They have no idea what the number is.”

Jennifer Van Hook

Jennifer Van Hook

In the third debate, Hillary Clinton said, “We have 11 million undocumented people. They [undocumented parents] have 4 million American citizen children. 15 million people.”

The confusion is warranted. After all, the U.S. Census Bureau does not ask people about their immigration status, so how can we know much about the unauthorized foreign-born population?

Well, demographers have figured out a simple and effective way to estimate the number of unauthorized immigrants. In the last five years, my colleagues Frank D. Bean, James D. Bachmeier and I have conducted a series of studies that evaluate this method and its assumptions. Our research on the methods used to estimate the size of this group indicates that these estimates are reasonably accurate.

Here’s how it works.

A simple formula

Beginning in the late 1970s, a group of demographers consisting primarily of Jeffrey Passel, Robert Warren, Jacob Siegel, Gregory Robinson and Karen Woodrow introduced the “residual method” for estimating the number of unauthorized immigrants living in the country. At the time, Passel and his collaborators were affiliated with the U.S. Bureau of the Census and Warren with the Office of Immigration Statistics of the Immigration and Naturalization Service. Much of this work was published in the form of internal reports, but some of it appeared in major journals.

The residual method uses an estimate of the total foreign-born population in the country (F), based on U.S. Census data. Researchers then subtract from it the number of legal immigrants residing here (L), estimated from government records of legal immigrants who receive “green cards” minus the number that died or left the country. The result is an estimate of the unauthorized population (U):

F – L = U

Various adjustments are typically made to this formula. Most adjustments are minor, but a particularly important one adjusts for what researchers call “coverage error” among the unauthorized foreign-born. Coverage error occurs when the census data underestimate the size of a group. This can occur when people live in nonresidential or unconventional locations – such as on the streets or in a neighbor’s basement – or when they fail to respond to the census. Coverage error could be particularly high among unauthorized immigrants because they may be trying to avoid detection.

Currently, the Department of Homeland Security and the Pew Hispanic Center are the two major producers of estimates of the unauthorized foreign-born population. This report, compiled by Passel, who now works at Pew, summarizes many of the estimates. It shows that the estimated number increased steadily from 3.5 million in 1990 to 12.2 million in 2007, but declined between 2007 and 2009 and has since stabilized at around 11 million.

How accurate are the estimates?

The residual method has been widely used and accepted since the late 1970s. Within a reasonable margin of error, it predicted the number of unauthorized immigrants to legalize under the Immigration Reform and Control Act of 1986, which, among other things, granted permanent residency status to unauthorized immigrants who had been living in the country since 1982. The residual method predicted that about 2.2 million met the residency requirement and the actual number to come forward was about 1.7 million.

Both Department of Homeland Security and Pew have used the residual method to produce estimates of the unauthorized population since 2005. Despite using slightly different data and assumptions, Pew’s and the Department of Homeland Security’s estimates have never differed by more than 600,000 people, or 5.5 percent of the total unauthorized population.

Nevertheless, many skeptics question a key assumption of the residual method, which is that unauthorized immigrants participate in census surveys. Both Pew and the Department of Homeland Security inflate their estimates to account for the possibility that some unauthorized immigrants are missing from census data. Pew inflates by 13 percent and the Department of Homeland Security by 10 percent. But is this enough?

My colleagues and I estimated coverage error among Mexican immigrants, a group that composes 60 percent of all unauthorized immigrants. Even if they are not counted in a census, populations leave “fingerprints” of their presence in the form of deaths and births. Because people give birth and die with known regularity regardless of their legal status, we were able to use birth and death records of all Mexican-born persons to determine the number of the Mexican-born persons living in the U.S. We also looked at changes in Mexican census data between 1990 and 2010 to gauge the size of Mexico’s “missing” population, most of whom moved to the United States.

We then compared these estimates based on births, deaths and migration with the number of estimated Mexican immigrants in census data.

Based on this analysis, we found that the census missed as many as 26 percent of unauthorized immigrants in the early 2000s. We speculated that this could have been due to the large numbers of temporary Mexican labor migrants who were living in the United States at the time. Because many worked in construction during the housing boom and lived in temporary housing arrangements, it may have been particularly difficult to accurately account for them in census surveys. However, when the Great Recession and housing crisis hit, many of these temporary workers went home or stopped coming to the U.S. in the first place, and coverage error declined. By 2010, the coverage error may have been as low as 6 percent.

If current levels of coverage error for all unauthorized immigrants were as high as 26 percent, then the number living in the country could be as high as 13 million. But if coverage error were as low as 6 percent, then the figure could be as low as 10.3 million.

What this boils down to is that we have a pretty good idea of the number of unauthorized immigrants living in the United States. It most likely falls within a narrow range somewhere between 10.3 million and 13 million. If coverage error has declined as much as we think it has, then the truth is at the lower end of this range. Despite widespread beliefs, unauthorized immigration is not increasing out of control and certainly is not as high as 30 million. Instead, it has probably really has stabilized somewhere around 11 million.

The Conversation

Jennifer Van Hook is a Liberal Arts Research Professor of Sociology and Demography at Pennsylvania State UniversityThis article was originally published on The Conversation. Read the original article.

Pro-Clinton Super PAC says Trump wants to deport millions, including ‘Dreamers’

A screenshot of an ad by political action committee Priorities USA Action spotlighting Donald Trump's comments on deporting undocumented immigrant families.

A screenshot of an ad by political action committee Priorities USA Action spotlighting Donald Trump’s comments on deporting undocumented immigrant families.

Shoba Sivaprasad Wadhia, an immigration law expert and clinical professor of law at Penn State, was quoted in a PolitiFact article assessing the truthfulness of an ad by a political action committee supporting Hillary Clinton that spotlights Donald Trump’s comments on deporting undocumented immigrant families. The message was deemed “mostly true” by the PolitiFact fact checkers. Here’s an excerpt:

Shoba Sivaprasad Wadhia

Shoba Sivaprasad Wadhia

“Hypothetically, Trump could revoke the deferred action status of DACA recipients, which in turn would terminate their employment authorization and render them subject to removal, said Shoba Sivaprasad Wadhia, an immigration law expert and professor at Pennsylvania State University.

“‘However the biggest impediment to deporting this cohort of immigrants would be the resources it would take to apprehend, detain, charge, try and remove so-called Dreamers,’ Wadhia said. ‘If he wanted to, he could target the vast majority of Dreamers for removal but it would not be easy or quick — it would likely take years to implement.'”

Read the full article at

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