By Jack Rosenberry
The increased likelihood of an encounter with an agent from Immigrations and Customs Enforcement (ICE) as the agency enforces laws more harshly means carrying paperwork to document status is something many immigrants should consider doing.
Immigration attorney Brandon Roché says the best thing to be able to show an officer in that case is proof of legal status to be in the country, such as a permanent resident green card, proof of asylum, or evidence of an unexpired visa. “Anybody who's here on a valid entry visa shouldn't have anything to worry about as long as they're still within the time that was granted them,” he added.
Short of that, the next most important thing to show is proof of physical presence in the United States for two years or longer from the time of the engagement by ICE, Roché said.
That is because an expanded program for “expedited removal” gives ICE the authority to deport people with less than two years of residence without giving them an opportunity to go before an immigration judge. Being able to show residence in the US for more than two years doesn’t mean someone won’t be detained and eventually deported, but it does mean they will get more time for an opportunity to make their case before a judge.
“If you do not have status and you don't have at least two years of presence in the United States, they're going to put you into this expedited removal track,” Roché said.
Documents that can be used to indicate physical presence in the US include paperwork documenting an asylum application more than two years previously because the person had to be physically in the US to file it. A driver’s license that shows a date of issue more than two years in the past should work as well. Other documents such as a lease or utility bill in the person’s name dated more than two years earlier could also work. For a mother of a child older than 2 born in the US, the child’s birth certificate also fits the purpose because it proves the woman was in the US at the time of the birth.
Carrying multiple proofs, at least two or three, is also a good idea. Even though a driver’s license or work permit can prove date of presence to block expedited action, those documents might not be protection against detention, Roché said. That is because they are not proof of citizenship and can be obtained pending approval of legal status.
Carrying original documents to show proof of status or residence time is risky because of the problems that would result from losing such important papers, and also because they could be bulky to carry around all the time. Roché therefore recommends putting photos of them on a smartphone and having photocopies in the car, leaving the originals stored in a safe place.
Even then, the documentation might not be accepted because the policies around stopping and detaining immigrants for status checks have been in flux since the beginning of the Trump administration. “They haven't said what they will take (for proof) in those scenarios and we haven't seen enough of it happen to know what's acceptable,” he said.
Even naturalized citizens who fear they might be at risk might want to carry documentation such as a photo of their passport or naturalization certificate in their phones. “I hate to say that a US citizen should have to carry anything,” Roché said, but it still might be prudent for someone who is concerned.
People whose asylum applications are pending and those in temporary protected status (TPS) could be at even greater risk. In the past people with asylum applications pending would not have been detained or deported, but that is happening now in the new administration.
For people who've obtained TPS, “there's not much we can tell them that's going to be helpful,” Roché said. “It was always temporary status. The rug has been pulled out from under them sooner than anyone thought, but unfortunately, that (TPS) was not something that was designed to be a long term protection.”
Similar difficulty could face people who have applied for a change in status from something temporary, such as a student visa or tourist visa, to a more permanent status. Having proof that the change of status is under way could be helpful, but is no guarantee.
“If you've overstayed whatever your initial entry was for and you're changing to another status, it doesn't mean they won't detain you,” Roché said. That’s because it’s still a technical violation of the entry conditions until the new status is approved, making it a gray area.
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