University Times

A crystal ball set the tone for a Jan. 18 Pitt law panel discussion on what the future holds for U.S. immigration policy.

“I think it will be extremely helpful,” immigration law expert Sheila I. Vélez Martínez said as she placed the small glass orb on the lectern at the start of her presentation.

“There’s so much that we don’t know. … We do know there’s going to be changes.”

The crystal ball proved prescient. Just nine days later, President Donald Trump issued his contentious executive order on immigration.

Vélez Martínez, the law school’s Jack and Lovell Olender Professor of Refugee, Asylum and Immigration Law, joined law school dean and constitutional law expert William M. Carter Jr. and adjunct law professor Orlando Portela Valentin, an attorney with Jewish Family & Children’s Service of Pittsburgh, to speak on “The Future of DACA and Immigration Law and Policy,” the first University Forum on Current Issues event.

The series, coordinated by the Office of the Provost, is designed to draw from faculty expertise to engage the University community in discussions on pressing issues.

*

“Laws can only be changed by other laws … and regulations are not easy to change,” said Vélez Martínez, predicting that the main regulatory and statutory framework will remain. Enforcement priorities and sensitive location policies will stay in place until changed.

However, executive orders — like DACA (Deferred Action for Childhood Arrivals) — “could be changed immediately,” she cautioned.

Vélez Martínez said increased enforcement activities are likely; she predicted raids on workplaces, which do not fall under immigration’s “sensitive locations” policy that precludes enforcement activity in schools, hospitals, churches and public demonstrations.

“We’ll see a reinterpretation of what a criminal alien is — I think that’s going to go from someone convicted to maybe someone arrested, so they can meet the numbers that they propose to detain,” she said.

DACA may not continue, policies concerning unaccompanied minors are likely to change, and increased targeting of immigrant communities is likely, she predicted.

*

Vélez Martínez labeled the current tangle of immigration laws and policies “a crisis or a mess in the making for over 150 years.”

When the United States was first established, states regulated immigration, she said, noting that it was not until the Chinese Exclusion Act was adopted in the late 19th century that there was comprehensive federal regulation of immigration.

“Interestingly, the first series of regulations to control immigration federally were all exclusionary policies,” she said.

Rather than being designed to allow people to immigrate in an orderly way, the policies were designed to expel people or to keep people out.

Many such policies were racially oriented, operating under a quota system “designed to keep the most homogeneous, whitest immigration possible,” she said. Immigrants from countries in northern Europe were given preference over those from more Catholic regions.

“Policies were targeting not only Chinese, but Catholics, Irish people, Italians, Polish” — anyone not mainstream white Anglo-Saxon Protestant, Vélez Martínez said.

“Now we think of Irish communities, Polish communities, Italian communities as mainstream American communities … a staple of what America is. But it was not always like that, and we tend to forget.”

Elimination of the quota system is an important achievement of the civil rights movement, she said. The current system, based on family and employment relationships, with caps on the percentage of immigrants from any one country, was introduced in 1965.

The wait to immigrate can be decades long, even for family members of U.S. citizens. “When we hear about people having to go to the back of the line, this is the line.”

Reform is needed, she said, noting: “The system we have today is the system designed in 1965.”

Multiple DREAM Act (Development, Relief and Education for Alien Minors) bills, which would provide a path to citizenship for undocumented immigrants who were brought to the United States as children, have failed in Congress since first introduced in 2001.

In response, the Obama administration established the DACA policy, under which such individuals can apply for authorization to work and temporary protection from deportation.

Following the failure in 2013 of a comprehensive immigration bill, the Obama administration’s DAPA (Deferred Action for Parents of Americans) plan — to protect undocumented parents of children born in the U.S. — was blocked in 2015 by a federal judge. The injunction remains in place. “That means that the parents of children are without that protection and there’s no immigration reform,” she said.

What can the University do?

Vélez Martínez urged the University to “reaffirm the values of diversity and inclusion; create spaces for communities to come together; prioritize the protection of community members that might be affected by this policy; institute policies that are Dreamer friendly; have services for students who might feel affected — not only because they’re DACA students, but because the general environment of harassment and uncertainty might affect them. And also limit voluntary cooperation with law enforcement agencies.”

In response to a question regarding sanctuary cities and campuses, she noted that there is no single defined meaning for the term sanctuary, and that it could create a false sense of safety.

While sanctuary is part of a longstanding tenet of providing a space for those who need protection, there is no guarantee that anyone is outside the reach of enforcement, she said.

*

Portela Valentin, who assists immigrants and refugees through the Jewish Family & Children’s Service of Pittsburgh legal department, said: “It is the reality that our community, especially the immigrant community, is really concerned about the change, about the future. And I think they should be.”

Reading several points of the “Plan to Put America First” from Donald Trump’s campaign website, Portela Valentin said: “‘Under a Trump administration, anyone who illegally crosses the border will be detained until they are removed out of our country.’ … That means that we will have a lot of people in jail,” given that cases may take years to be resolved.

Fears that homes will be raided and people taken away aren’t baseless, Portela Valentin said. “The page says they will move criminal aliens out on day one … and they will do that through joint operations with local and state and federal law enforcement agencies … That was (in) his campaign statements.”

Trump also promised he would “‘Immediately terminate President Obama’s two illegal executive amnesties’ — He’s talking about DACA,” said Portela Valentin.

In addition, when asked during Senate hearings what would happen to some 800,000 people who are benefiting from DACA if the policy were struck down, attorney general nominee Sen. Jeffrey Sessions said it would not be his responsibility, but that the system needs to be fixed.

Said Portela Valentin: “There are people who now are studying, have jobs, are working under DACA provisions, and they will have to wait until the system is fixed, whatever that means.”

While laws may be hard to change, the president can direct enforcement priorities. In addition, people can be deported without the right to plead their case before a judge. “Are they going to use that provision more?”

In the days following the election, Portela Valentin heard immigrants expressing concerns: “Should I send my kids to school? Will they be safe?”

Amid reports of hate crimes and harassment across the country, some children here reportedly had been surrounded by other kids and taunted that “they’d be sent back to Mexico — even though they’re American citizens,” Portela Valentin said. “It doesn’t matter. It hurts the kids the same,” he said.

Undocumented parents worry whether the government could take their children. And some DACA registrants now fear that the information they provided in good faith could be used against them if the policy is struck down. “Now, after giving that information, they are susceptible to be deported,” he said.

Even if changes aren’t immediate, “the tension is still there,” he said.

“I think the worst fear that the community has is that up till now things are not clearly defined.”

*

Law school Dean Carter provided a Constitutional law perspective.

The federal government has the power to regulate immigration, and the Constitutional supremacy clause makes its regulation supreme over conflicting state or local laws.

“The legal authority to regulate immigration and migration rests with Congress, not the president,” Carter said, acknowledging that the president does have broad authority to implement many regulatory and administrative measures that can affect immigration.

When Congress is exercising its authority, the courts tend to be deferential to the political branches’ decisions regarding immigration law and policy. However, there is precedent demonstrating that “the judges and the Supreme Court will intervene when it appears individual rights are being infringed,” he said.

Recent decisions make clear that Congress cannot “draft the states into being nothing but subsidiaries of the federal government,” nor can it coerce states and local governments into doing the federal government’s bidding under the threat of withholding federal funding.

“I expect that principle to be tested very soon,” Carter said. “My reading of the cases as they currently stand is that the states and local governments are free to take a stance of passive non-assistance with regard to federal immigration law.”

Carter said that norms and principles of equal protection may be at stake, depending on how the federal government exercises its power to regulate immigration.

However, “There is a distinction in the Constitutional doctrine between Congress’s power to regulate based on alienage — non-citizenship — versus its power to regulate based on race, religion or national origin — because of course, your national origin is not necessarily up to your citizenship,” he said.

The dean noted that the Supreme Court has defended that line.

Regarding the individual rights implications of potential changes in immigration law policy: “They may change the priorities and regulations of the federal government with regard to immigration; that is not necessarily the same as saying the government has the free hand to discriminate against immigrants,” Carter said.

“I do believe the judiciary will remain vigilant with regard to potential discrimination and individual rights infringement, separate from whatever the federal policies may actually be.”

*

The forum, moderated by business faculty member Larry Feick, can be viewed at www.youtube.com/watch?v=ggBCAP-yAlQ.

—Kimberly K. Barlow