The decrees signed by Donald Trump worry migrant rights defenders. Behind the new president’s speeches on the expulsion of millions of “criminal aliens” lies a more complex reality: people without status are not always in the country without authorization. And they are not automatically criminals, no matter how they crossed the border.
Published at 5:00 a.m.
“This is a multi-pronged attack on immigration, on the legal immigration system,” said Anna O. Law, Herbert Kurz Chair in Constitutional Rights and associate professor of political science at CUNY Brooklyn College.
One decree in particular caused a reaction: the refusal to systematically grant American citizenship to babies born in the United States, but to foreign parents – whether they are on American soil legally or not. The measure would affect all children born at least 30 days after the decree.
On Tuesday, attorneys general from 22 states launched a lawsuit to block the executive order, citing a violation of the 14e amendment of the Constitution. Rights groups, such as the American Civil Liberties Union (ACLU) and the League of United Latin American Citizens, also contest the measure.
“There is a consensus among professors of constitutional law,” says M.me Law. The interpretation of the Constitution is clear on this point, she specifies, and neither a decree nor a law of Congress could modify it. To change the Constitution, the consent of at least two-thirds of both Houses is required.
“Protect the people against invasion”
Donald Trump has often denounced the presence of migrants without legal status.
In 2022, the Pew Research Center estimated that there would be 11 million “unauthorized immigrants” in the United States. Of these, some 3 million were granted temporary protection from deportation, and therefore permission to remain in the United States.
Who are these “without authorization” migrants, according to statistics, but with official permission? Asylum seekers awaiting a decision, people benefiting from Temporary Protected Status because their country is on a list of risk zones, people waiting for a new visa, migrants who arrived in the country as children before 2007 – this last category is often called “dreamers” or “DACA”, for “Deferred Action for Childhood Arrivals”.
The new administration plans to tighten the rules for them too.
In his executive order to “protect the American people from invasion,” Trump proposes, for example, to reassess the criteria for Temporary Protected Status. It also puts an end to a program put in place by Joe Biden to facilitate the emigration of up to 30,000 nationals from Cuba, Haiti, Nicaragua and Venezuela, under certain conditions.
“It was put in place because there were many people arriving without authorization, and the Biden administration recognized that there were real problems with these countries, and that an exceptional procedure was needed to allow their nationals to come legally,” explains Ernesto Castañeda, specialist from the American University in Washington.
-PHOTO JUSTIN HAMEL, ARCHIVES BLOOMBERG
Migrants resting near the US-Mexico border in Ciudad Juárez, Chihuahua State, Mexico
Donald Trump plans to reinstate his “Remain in Mexico” policy to force asylum seekers to remain in the neighboring country awaiting a decision on their status – even if this first requires negotiations with the Mexican government.
Irregular passage and expulsions
The passage of migrants outside official ports of entry has also been in the crosshairs of both Republicans and Democrats, citing illicit trafficking at the border. Asylum seekers should not, however, be penalized because they entered a country irregularly, according to the Geneva Convention relating to the status of refugees.
The ability to appear at the borders of the United States and seek asylum protection is provided for under our domestic and international law. The person’s status, as a refugee or not, is then determined by the immigration courts.
Anna O. Law, professor at CUNY Brooklyn College
Even undocumented immigrants who have been in the country for several years, under threat of deportation, could try to make an asylum application, which would then have to be examined in court.
The authorities could already expel foreigners who had failed in court or who had committed a crime.
For the year 2024, 271,480 “non-citizens under final order of deportation,” including more than 88,760 people accused or convicted of criminal activities, were removed from the country, according to the 2024 annual report of the US Immigration and Customs Enforcement. There are currently 1.4 million people under final deportation orders in the United States, according to figures compiled by the New York Times.
For now, the Trump administration has suspended migrant entries at the border “until [le président] concludes that the invasion on the southern border has ceased.
