In one of many campaign promises, Donald Trump promised to deport the millions of undocumented immigrants in the United States.
Yet according to the Syracuse University database TRAC, of the 105,853 completed cases in the 2017 fiscal year, from October 2016 through March 2017, in about half of all immigration court cases judges allowed the undocumented immigrant to stay in the United States, whether through termination of the case, relief, or closure.
The Trump administration and Department of Homeland Security also maintain they will prioritize the deportation of those who have committed serious crimes.
However, unauthorized immigrants with a criminal charge, or classified a national security or terror threat currently make up about 8 percent of all completed cases for the fiscal year of 2017, and about one-third of all those with a criminal charge, classified a national security or terror threat were granted stay within the U.S.
While the number of court cases brought to immigration courts continues to rise and with 572,608 pending cases as of now, undocumented immigrants are caught in the process of deportation with as much of a chance of staying as being deported.
Immigration judges, 309 of them, are at the forefront when deciding who stays and who goes. Many times immigration judges have decided those who have violated immigration law by staying in the U.S. illegally, can stay in the country. Eight of 10 undocumented immigrants allowed to stay were charged with violating immigration law.
In an email response, Yasmeen O’Keefe, ICE public affairs officer, says that “DHS will NOT exempt classes or categories of removable aliens from potential enforcement.”
O’Keefe was answering a question relating to the rights of undocumented immigrants, who have been living in the United States for longer than two years.
According to the Migration Policy Institute, more than half of the 11 million undocumented immigrants in the U.S. have been living in the United States for more than 10 years.
Within the process of deportation, long-term undocumented immigrants have no more rights than any other immigrant who has violated immigration law, says Kathyrn Mattingly, assistant press secretary for the Executive Office for Immigration Review, an office under the Department of Justice, which interprets and administers federal immigration law.
However long-term undocumented immigrants do have recourse that others do not.
Major changes in immigration law under Trump include the expansion of expedited removal. Expedited removal is the legal authority of Immigration and Customs Enforcement and Customs and Border Protection agents to order the immediate deportation of an individual, without appearing before an immigration judge, unless the person “expresses” a credible fear, such as asylum seekers and refugees.
Currently, ICE or CBP officers can only order expedited removal within 100 miles from the border and if the person detained cannot prove they have been in the United States for more than 14 days.
A hundred miles from each border (land and coastal borders) includes about two-thirds of the U.S. population, and 61 percent of undocumented immigrants live among the top 20 metro areas most of which fall within the 100 miles, according to the Pew Research Center.
The order would give ICE and CBP the ability to use expedited removal anywhere in the United States and remove those detained who cannot prove to have been living within the United States for more than two years.
It would protect any long-term undocumented immigrants from expedited removal if they can prove their two-year residency, although there are no protections for long-term residents from being placed in deportation proceedings.
Of all expedited removals, about 640,000 since 2003, 80 percent were not charged for committing a crime and 15 percent charged for committing a Level 3 crime, the priority designation given by DHS to those who have committed petty crimes or misdemeanors, according to the Syracuse University database. Most undocumented immigrants classified as a Level 3 were charged with illegal entry.
However, most undocumented immigrants are subject to the long deportation process.
Those detained and apprehended and held at detention centers, wait an average 677 days, almost two years, before their cases are decided.
In 2016 there were almost 240,000 immigrants in deportation proceedings across the U.S., with immigrants from El Salvador, Mexico, Honduras, Guatemala, and China as the largest number of immigrants in the deportation process.
After receiving a notice to appear before a judge, the accused attends a calendar hearing, the equivalent of an arraignment in a criminal case, within a couple of weeks of being placed in detention. Before a judge, the undocumented immigrant is read the removal charges against them, and enters a plea of admit or deny. The judge also identifies possible forms of relief that apply to the specific case.
The judge then sets an individual hearing, or merit hearing, so the undocumented immigrant may present the case to the judge. If in detention it will be three to four months before this individual hearing.
If the undocumented immigrant posts a bond or is granted a bond by a judge or if the undocumented immigrant was given a notice to appear before a judge, the case would move to a city and would take three to four years before the undocumented immigrant is able to present the case. The undocumented immigrant may or may not be in detention during that time.
All apprehended undocumented immigrants, who have violated immigration law are subject to this process.
For long-term undocumented immigrants a chance to stay and a receive a benefit is even more rigorous.
According to the Syracuse University database TRAC, of the 105,853 completed cases in 2017 fiscal year, eight percent were granted relief from removal. In Arizona three percent of cases ended in relief from removal. Also, TRAC data shows that immigration courts take more than twice as long deciding cases which granted relief than those ending in removal. Currently the average stands at about 2 years and five months for cases ending in relief versus the year for cases ending in removal.
For Jose Vazquez, immigration lawyer with Wolf and Sultan, a consulting firm in Tucson, representing undocumented immigrants means constantly looking for avenues of relief from deportation.
The judge could grant relief from removal, termination, administrative close or other form of closure, or cancellation of removal. Vasquez finds most of his clients, who are long-term undocumented immigrants may be eligible to apply for cancellation of removal, which is a type of relief.
The first requirement for cancellation of removal and adjustment of status states that the undocumented immigrant must have lived in the U.S. for at least 10 years.
The undocumented immigrants must also demonstrate “good moral character” and have not been convicted of any offence from the time of entering the United States. The offense could include a charge of aggravated felony to crimes of moral turpitude, like shoplifting or even making false statements.
Undocumented immigrants must prove that should they be deported a relative, a citizen or permanent resident spouse, parent, or child, would suffer extreme or unusual hardship. Each case varies, but the judge will consider financial, medical and psychological hardship.
“[This] last requirement is usually the most difficult to get,” says Vazquez.
For long-term undocumented immigrants, the chances for relief are slim, and the chance to stay decided by a judge.The question for undocumented immigrants is are they willing to leave the fate of their lives to one judge.
Christina Duran is a reporter for Arizona Sonora News, a service from the School of Journalism with the University of Arizona. Contact her at email@example.com.