Under Trump Order 13768, foreigners are in trouble. It states which people are up for priority removal, and included are persons with a criminal record. However, it also includes persons who have been charged but not convicted.
With the definition expanded whereby a conviction is no longer required, it is creating and will create havoc amongst foreign persons. The very reason courts exist is to ascertain justice. People have different perspectives, which leads to miscommunications. Something may or may not be a crime, depending on the intent or the situation. At times, a neutral third party is required to clarify the situation and ascertain culpability. This will no longer exist and it has far-reaching, and destructive consequences.
U.S. labor law department receives many calls from foreign persons who have encountered abusive employers as well as persons who have been threatened with removal on a regular basis. If an employee chooses to exercise her or his rights, the employer may have the person charged with a crime (shoplifting, theft) simply to have a method of removing the person from the country and not having to face the consequences of labor law violations. This is just one of the consequences.
Another example in a private situation would be a U.S. citizen who may have promised marriage to a foreigner and changed his or her mind for whatever reason. If the situation becomes uncomfortable, for example where the partner asks for the ring back, or other allowances may have been made. In such a case, the citizen can merely call the police and have the person charged with domestic violence. As the foreign person is an enforcement priority, he or she will be removed and have a permanent arrest record that will always have to be revealed in the future. As there can be no trial required or possible if one is removed rapidly, the person may even have to carry sex offender or rapist status even if not true. This situation can be fatal from a career perspective for a doctor, professional dependent on security clearances and many others for various reasons.
Section 5 (c) of Executive Order 13768 dealing with enforcement priorities mentions people who “Have committed acts that constitute a chargeable criminal offence”. This section will lead to many problems and further congestion of U.S. courtrooms. There are many instances in which someone may have committed acts that constitute a chargeable criminal offense and yet they are not criminals. Additionally, one must always be concerned about who is reporting these people.
For instance, a few years ago a lady called our office in San Diego. She was shopping at Wallmart and had obtained pictures she had printed; the value was in the $5.00 range. She had two children with her and one of them was screaming uncontrollably. Out of courtesy, as the photo lab was by the front door, she took her child (with her shopping cart) outside the door to calm him.
The clerk at Walmart instantly called security and she was arrested and faced immigration consequences. Yes, the above woman committed acts that constitute a criminal offense…but that was not her intention; it was pure mistake. She was distracted by the crying and wailing and forgot about the pictures.
With Trump Order no. 13768, one problem is that human error can be fatal for foreigners, as you can see. Immigrants could be deported even if they have not committed any crimes. In other words, it means that such immigrants are not provided the presumption of innocence and that equal protection under the law is violated.
Avv. Sara Dell’Ariccia
Attorney Steven Riznyk