Protecting Yourself in the Age of Trump: A Practical Guide for Undocumented and Documented Non-Citizens

By Maura Finn

It is December 2016, days before Christmas, and we are one month away from the inauguration of President Trump, and with him what is likely to be the most anti-immigrant administration in modern history. If you are not a U.S. citizen (even if you are a U.S. citizen), you are likely afraid of what the Trump presidency will mean for you, your status, and your family. What follows is a non-exhaustive list of practical tips for protecting yourself for the next four to (hopefully not) eight years.

  1. Avoid drug and alcohol related offenses.

Even under the current administration’s removal enforcement priorities, any alcohol or drug related conviction makes an undocumented individual an immediate priority for enforcement of removal. Convictions for alcohol and drug related offenses often result in the loss of legal or protected status, including for beneficiaries of the deferred action for childhood arrivals (DACA) program. Arrests for driving under the influence (DUI) and drug-related arrests – even those that do not result in conviction – can result in a finding that an individual is ineligible for an immigrant visa based on health-related grounds of inadmissibility. Most convictions for controlled substances carry harsh immigration consequences for both documented and undocumented individuals, including loss of status and removal for green card holders in many cases.

I cannot tell you how many times I have had my squeaky clean 17-year old DACA recipient come back to apply for renewal as a 19-year old college student, and I have to tell her that she is not only no longer eligible for DACA due to her DUI or simple possession conviction, but she is now a priority for enforcement of removal. She loses her protected status, her employment authorization, and usually her eligibility to enroll in college classes and driver’s license (depending on school and state law). She may have entered the United States as an infant, have no memory of Mexico or even any family there, and be a stellar student, but she will be a priority for removal from the United States. In summary – do not drink and drive. Do not do drugs. Do not be in the vicinity of people doing drugs.

  1. Do not get arrested.

While this point may seem obvious, it needs to be said, and it is particularly crucial for undocumented individuals. The incoming administration intends to prioritize “criminal aliens” for removal. While it is unclear as of yet how big of a departure will be made from the current enforcement priorities, under which individuals convicted of specified categories of crimes (which encompass a broad range of felonies and misdemeanors) are already priorities for enforcement, Kansas Secretary of State Kris Kobach has proposed expanding the definition of “criminal alien” to include any alien arrested for any crime, with no criminal conviction required. Does this include any undocumented person ever arrested for driving without a license? We do not know. If you are undocumented, avoid getting arrested, as an arrest for any offense will potentially make you a priority for removal enforcement under the incoming administration.

Relatedly, know the climate of the county in which you reside. Do you reside in a more anti-immigrant county, where, if you are arrested, the police will put an ICE detainer on you, regardless of the offense? Know your surroundings. Pay to take a taxi instead of driving without a license. Ask for a lawyer if you are arrested.

  1. If you are arrested, talk to an immigration attorney before pleading nolo contendre, or accepting any plea deal, including first offender programs.

If number two fails – do not admit to anything or accept any plea deal without first speaking to an immigration attorney. Immigration consequences of criminal activity are vastly different than the criminal consequences. Many criminal convictions carry harsh immigration penalties, for those with and without legal status in the United States. Certain pleas, first offender programs, and diversion programs are not considered convictions for criminal purposes, but are considered convictions under immigration law. Your criminal defense attorney may advise you to accept that first-offender program nolo contendre plea to your drug charge, telling you it’s not a conviction, and it will not even be on your record in a few years; she may advise you to plead to a lesser offense that will minimize your sentence. Talk to an immigration attorney first and be sure you understand the immigration consequences before you enter a plea or accept any deal.

  1. Do your taxes.

If you are living and working in the United States, you are required by law to pay your taxes. You do not need a social security number to pay your taxes; the IRS will issue you a tax ID number. The IRS does not report people to ICE for filing taxes with a tax ID number – the government wants its money. Almost all immigration benefits require a showing of good moral character on the part of the alien. Many benefits and relief from removal require a showing of physical presence in the United States for a specified period. Even if you are not eligible for a benefit now, it will serve you well to file your taxes should you become eligible for a benefit in the future.

  1. Do not use someone else’s documents or social security number.

While I am certainly not endorsing anyone breaking the law, the criminal and immigration penalties for a conviction of identity theft or fraud are much harsher than the consequences of working without authorization.

  1. Talk to an immigration attorney about your legal options; notaries are not attorneys.

In many other countries, becoming a notary requires substantial schooling, and notaries perform a similar function to attorneys. Such is not the case in the United States, and notario fraud is rampant. Your immigration status in not the place to try to save a few bucks. Only go to a licensed immigration attorney for legal advice and services.

Relatedly, do not allow anyone to file applications on your behalf that you either have not read or do not understand. Your immigration record is forever. Being found to have lied for an immigration benefit carries serious immigration consequences. A ruling by an immigration judge that an asylum application is “frivolous” results in a lifetime bar from obtaining an immigration benefit. It is very important to know what information you are submitting to immigration, and if it is accurate.

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