Like many immigration lawyers, I spent four years under the first Trump administration in strange places. On the floor of JFK airport with my laptop during the rollout of the Muslim ban. In a church as ICE waited outside to arrest an immigrant rights leader. At socially distanced protests in front of remote immigration detention centers as COVID-19 spread inside. I know from experience that immigrant communities, organizers, and attorneys are prepared to respond to Trump's day-one policies. But I also know that if we wait until day one, it will already be too late.
The resistance 1.0 required all of our resources. First and foremost, it required our people. Immigrant activists led the charge against the Trump administration and faced heavy retaliation as a result. Trump's efforts to deport them and their loved ones was sprawling and chaotic. It would be a missed opportunity to not do everything we can now to protect as many people as possible before Trump takes office.
Protection isn't easy. Many of the 28 million people in mixed-status families living in the United States have no pathway for their loved ones to apply for status or citizenship. Congress has not fundamentally changed federal immigration laws since its harsh 1996 reforms, which created the deportation machinery we have today. But there are some safety valves: Some immigrants do have valid applications for status, waivers, and pardons in the pipeline. Others may benefit from extensions of temporary protections. The Biden administration should process every eligible application and extend protection to as many people as possible before the inauguration. The wheels of bureaucratic justice need to spin faster over the coming weeks.
States and localities, too, must act quickly to reexamine their role in the deportation machine. No one can pretend to be unaware of what's coming. During the first Trump administration, federal immigration officials coopted state and local resources to enact its harshest policies. As longtime community members were rounded up, counties questioned whether their jail space should be used to hold Trump's latest targets. Small towns were left to pick up the pieces after factory workers were deported. Tom Homan, whom Trump recently tapped to lead his mass deportations and border operations, infamously told undocumented immigrants to look over their shoulders and engaged in community raids. He additionally promises to bring back large-scale workplace raids and is encouraging people to self-deport. States and localities will bear the burden of these policies and their consequences.
States and localities have options to protect their residents. Many have enacted or are considering legislation to prevent community resources from being coopted for deportation. California is leading the way by convening a special legislative session to strengthen its laws across several domains. Trump promises bold change. States and localities need to be bolder.
Communities have a lot to gain when their local and state elected officials draw clear lines between what happens locally and federal immigration enforcement. Studies have shown that modest steps can make communities safer and protect local economies. Most importantly, with the new Trump era, such legislation allows state and local officials to avoid entanglement with messy federal immigration policies over which they have no control. It protects states and localities from liability for immigration schemes like federal "detainers," which ask local law enforcement to hold immigrants for deportation at their own expense without a judicial warrant. It allows states and localities to focus on providing legal assistance and a safety net for families as programs like Deferred Act for Childhood Arrivals and Temporary Protected Status come under threat.
Some may be tempted to wait and see what the second Trump administration brings. But we know too much about what Trump has done in the past to not take his day-one promises seriously. Strong immigrant communities are a vital part of this country. Immigrants have been seeking protection from the Biden administration and advocating for pro-immigrant legislation in town halls and state legislatures across the country. Now is the time to act.
Alina Das is a professor at New York University Law School, where she co-directs the Immigrant Rights Clinic and is a Public Voices Fellow. She is the author of No Justice in the Shadows: How America Criminalizes Immigrants.
The views expressed in this article are the writer's own.
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