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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Trump Year One: A conversation with four Minnesota immigration lawyers

with DAN DONNELLY, DANIELLE HENDRICKSON, SAIKO McIVOR, and R. MARK FREY

The Trump administration’s directives on immigration have been making headlines since the president’s first week in office. But there is more to the story than the fabled travel ban. In this article, four Minnesota immigration lawyers talk candidly about how the new regime has affected their practices and their clients, who now face greater uncertainty regarding their employment, education, families, and interactions with law enforcement.


What have been the biggest differences in your practice experience since President Trump began issuing his immigration orders in early 2017?

DAN DONNELLY: A general sense of anxiousness and urgency on the part of clients to get their cases resolved. We’ve seen an uptick in permanent residents (green card holders) who are applying for citizenship because they are under the impression the Trump administration may try and deport permanent residents. I also think clients are much more likely to consult with more than one immigration attorney right now if they feel their case is not moving as quickly as it should. I see this as a result of the overall feeling of fear that they are in the crosshairs right now.

DANIELLE HENDRICKSON: With the new administration’s policies regarding immigration, there has been a lot of fear for clients and uncertainty for me as a practitioner. Now, more than ever before, I find myself having safety planning and family preparedness conversations with clients in case they are detained by immigration officials. I have also begun advising clients with “know your rights” information about their constitutional protections when encountering law enforcement and immigration officials.

At times it has been difficult to manage client expectations. Of course there are always clients who want certainty and want you to tell them that their case is a guaranteed success. While you can never say with absolute certainty what the outcome of a case will be, it’s even harder to guess at the answer when immigration policies are constantly shifting and being argued in the courts. So much can change from one day to the next. That, coupled with greatly lengthened processing times for all immigration applications, has made clients more nervous. I receive a lot more anxious calls from clients than in the past. With the shift in policies, you have to be even more diligent, researched, and prepared as a practitioner. You have to find a way to stay positive and push forward even when there seem to be more obstacles than ever for your clients.

SAIKO McIVOR: Constant changes in policies and illogical reasoning by the government, an unprecedented rate of requests for evidence (RFEs) and denials, and fast-approaching RFE response and appeal deadlines have made the last year the most challenging, frustrating, and stressful year of all time for immigration lawyers. Long days in the office take a toll. Meanwhile, our office practice has had to adapt. Initial petitions and applications have to be prepared with much more information and documentation than ever before; clients need to be advised to have not only Plan B, but Plan C and D, including earlier filing of green card applications if feasible. Foreign workers already in the U.S. need to be advised to avoid unnecessary foreign travel, since any travel could result in visa denial, travel delays, or sometimes denial of admission.

In light of this difficulty, it is also unavoidable to re-evaluate the legal fees to represent immigration cases.

MARK FREY: What I’ve seen most dramatically is a general increase in anxiety, confusion, and fear from all members of the immigrant population, not just those directly affected by the travel bans. This is coming from existing clients as well as individuals calling with queries about the current state of affairs and its impact on their situation. This is clearly a consequence of the rhetoric employed by President Trump and other members of his administration—vilifying immigrants in general and non-white immigrants in particular.

I do a large amount of asylum work with clients from different parts of the world, people who have fled situations involving persecution, sometimes torture, where due process is given short shrift. One big worry on these folks’ part relates to what they experienced in their home countries with authoritarian regimes and what to expect here in the United States, with law enforcement or ICE officials coming to their homes, forcibly taking them away, separating them from their families, and immediately deporting them to their home countries. That’s the fear—this from people who may have been imprisoned and tortured back home, all without recourse to a judicial system independent of a strong man serving as president.


What is the impact of the Trump Administration’s new initiatives on U.S. businesses?

McIVOR: I practice employment-based immigration law and represent mostly corporate clients hiring foreign workers. We all know that President Trump has long campaigned against illegal immigration, but he has also mounted a concerted and continued attack on foreign workers legally wanting to work in the United States. This in turn has severely affected US businesses’ ability to employ, keep, or transfer needed foreign workers.

There have been some published policy changes at the agency level (including, for example, a new mandatory interview requirement for all employment-based green card applicants, and a new policy to adjudicate extension of previously approved immigration applications de novo), all of which restrict employment-based immigration. But the most devastating change for many U.S. employers is a dramatic increase—50 percent in some visa categories—in the number of push-backs (RFEs) and denials of nonimmigrant and immigrant petitions. President Trump’s anti-immigrant rhetoric and “Extreme Vetting” and “Buy American, Hire American” executive orders have effectively forced federal officers at all agencies—immigration (USCIS), border (CBP), and consular (DOS) offices—to oblige the directives of their “big boss,” deny applications as much as possible, and reduce the number of foreign workers in the U.S. at all cost.

Even some of the cleanest, seemingly “slum-dunk” petitions have received 17-page long RFEs, and the government’s decisions are too often obviously wrong and legally unfounded—applying standards or criteria that are over the top, illogical, and never before raised as an issue. For instance, the USCIS suddenly started to argue that because the salary offered to the foreign worker is an “entry-level” prevailing wage for the occupation, the offered position cannot possibly be providing “professional-level” services, which is a required criterion for H-1B approval. With this reasoning, a Harvard MBA with managerial-level experience got an H-1B denial for a CEO position with a small company. This is flat-out wrong—and illegal, as the USCIS has no jurisdiction to analyze and comment on the prevailing wage in the first place. In spite of a “preponderance of evidence” standard that the law requires, they are suddenly applying a “beyond a reasonable doubt” standard to employment-based immigration cases, which is unprecedented. The added work by federal agents also takes away valuable and limited resources from the agencies.

As a result, it has become much harder for U.S. businesses to hire, keep, or transfer foreign workers, and they are losing the competitive edge to foreign companies. This is not only a lost opportunity for the foreign worker but also for U.S. businesses and the U.S. economy overall. Trump’s anti-immigrant initiative is clearly hurting U.S. families and businesses in this way.

We’ve read reports that a lot has changed for your clients in terms of the interaction of immigration and criminal law—that there’s more effort to bargain on minor criminal charges to ensure that they don’t trigger deportation, for instance, and that the reporting of domestic violence and other crimes has declined in immigrant communities out of deportation fears. Likewise, it’s been reported that immigrants who are the victims of crimes are more reluctant to report those incidents, fearing deportation for themselves and their family members. Can you elaborate on these and other collateral effects you’ve seen flowing from this administration’s immigration policy?

HENDRICKSON: There is fear not only in criminal matters or in calling the police, but in going to family court or asking a court for an order for protection. I have clients with valid employment-related disputes who chose not to pursue them. I think it seems, in general, that members of the immigrant community do not want to make any waves. They want to remain more hidden, to just put their noses down and wait for the situation to hopefully get better. I have seen that some individuals who are eligible for immigration benefits are reluctant to apply for those benefits. If they have undocumented family members, there is fear that having to disclose that information on an application will place their loved ones at risk for immigration enforcement and deportation.

I have clients with valid employment-related disputes who chose not to pursue them. I think it seems, in general, that members of the immigrant community do not want to make any waves. They want to remain more hidden, to just put their noses down and wait for the situation to hopefully get better. – DANIELLE HENDRICKSON

I have also seen a lot of confusion around eligibility for and use of public benefits. Some eligible families desperately need food support or medical assistance to supplement smaller incomes, but they fear that applying for these benefits will place family or household members at risk of either deportation or being unable to obtain permanent status in the future. Even among documented immigrants there is a lot of fear. I hear repeatedly from my naturalization clients that they are applying for citizenship now, even if they have been qualified for a while, to guard against the uncertainty for immigrants in this country at the moment.

DONNELLY: My practice is focused on both immigration and criminal law. The frequent overlap makes for a natural combination of these two areas. When my criminal client is not a United States citizen, the immigration consequences are often front and center. I have done a number of jury trials because the offer from the state would lead to adverse immigration consequences. However, depending on the crime, pleas are often structured to avoid devastating immigration consequences. This is most often the case with young offenders without any serious criminal record.

As far as individuals not reporting crimes, it’s hard to say. I practice in outstate Minnesota, and the county attorney’s and city attorney’s offices in the area are receptive to U visa requests. If anything, I think the immigrant population is more informed about the benefits of cooperating with law enforcement. There are still going to be unreported cases, typically when the perpetrator is the primary breadwinner for a family, and the victim is aware that they will face deportation if the crime is reported.

FREY: Nothing has changed from the standpoint of immigrants seeking advice about the immigration consequences of criminal convictions in order to avoid deportation. That’s always been a concern. And the U.S. Supreme Court has weighed in on the importance of immigrants being apprised of the immigration consequences flowing from criminal convictions. (See, for example, Padilla v. Kentucky, 559 U.S. 356 (2010), which requires criminal defense attorneys to advise noncitizen clients about the deportation risks associated with a guilty plea.)

The more significant changes I’ve seen and heard about concern relations between the immigrant community and law enforcement. Given the Trump administration’s rhetoric and its pressure on local officials over the matter of sanctuary cities, there’s growing mistrust and fear of law enforcement on the part of the immigrant population. As a result, they seem more fearful of reporting crimes to the police whether as victims of those crimes (at the hands of other immigrants or nonimmigrants) or witnesses to crimes (committed by other immigrants or nonimmigrants).

Why? Fear that they or family members will be deported. To be fair, many local law enforcement officials have weighed in with criticism of the Trump administration’s policies, arguing they effectively undermine law enforcement’s efforts to develop and nurture solid community relations where the immigrant community feels comfortable sharing information about acts being done by “bad dudes.” Ironically, the breakdown in relations between local law enforcement and the immigrant community contributes to less security. The “bad dudes” feel emboldened to act freely without consequence, under the belief that members will not report them.

For an administration that is a staunch advocate of states’ rights, it’s troubling to see its top-down approach to law enforcement in matters involving immigration and criminal law.


What long-term impacts do you see from the Trump Administration’s shift in immigration policy?

FREY: There will be significant long-term effects flowing from the Trump administration’s shift in immigration policy. We are a nation of immigrants, built on the blood, sweat, and tears of countless millions making the journey to a new land to start a new life under a variety of circumstances—fleeing persecution, reuniting with family members, seeking economic opportunity in the form of jobs as well as creating new businesses and jobs, among others. Countless individuals, some more famous than others, have made significant contributions to the well-being of our nation throughout its history. It’s been, in effect, a never-ending process of making America great, finding rejuvenation through new peoples, new dreams and aspirations, new ideas about tackling problems faced by our nation and the world.

Think of Albert Einstein; Steve Jobs, the biological son of a Syrian immigrant father and a mother with a Swiss-German heritage born in the Midwest; Google’s co-founders, the American-born Larry Page and the Russian-born Sergey Brin; Tesla’s co-founder, the South African-born Elon Musk; and innumerable Nobel laureates, sports figures, artists, and so forth. Yes, even former President Barack Obama, a child of a Kenyan father attending college in the United States and an American mother born in Kansas. It continues to this day.

This shift in immigration policy is effectively giving notice to the world that the United States no longer welcomes immigrants or more generally, peoples from other lands. In recent months, we’ve heard reports that the number of international tourists visiting the United States has declined, while colleges and universities have observed decreasing numbers of international students interested in studying here. There’s no question this will affect business and general relations with other countries around the world. Immigrants help formulate networks with others in their home countries, leading to increased trade and exchange of goods, ideas, and values. All of these things serve to create goodwill and a positive view of the United States.

The essential ingredient in the Trump administration’s general policy is isolationism—figuratively pulling up the drawbridge, keeping “outsiders” out, and voilà, making America great again. – R. MARK FREY

The essential ingredient in the Trump administration’s general policy is isolationism—figuratively pulling up the drawbridge, keeping “outsiders” out, and voilà, making America great again. But change and growth comes from interaction with others, the exchange of ideas and goods, and immersion in the global network of nations. And not by pulling out of agreements initially led by and committed to by the United States. Isolating from the world by excluding immigrants and other related actions does little to increase our national security. Our security will actually suffer as the rest of the world begins to question our leaders’ erratic behavior and discount the reliability of the United States, and thus becomes less likely to cooperate with our nation when it seeks help in resolving its own problems. Look, for example, at the indifference of some nations as the United States grapples with North Korea and its nuclear program. Other nations will in all likelihood look elsewhere for leadership, leaving the United States less effectual, with decreasing influence over events affecting us all, including those involving national security. One need look no further than U.S. withdrawal from the Trans Pacific Partnership (TPP) last year. The other countries didn’t drop the matter, but rather moved ahead with a new agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), this time without the United States.

Immigration policy is a bipartisan issue and while parties can reasonably disagree on certain points, they can also reasonably agree on certain others. Both major parties need to have a hand in developing and implementing our immigration laws for the 21st century. Of course, that means both must be committed to resolving this issue as well as so many others currently facing our nation.

Google, Intel, eBay, and Yahoo!, for instance, would not have been U.S. companies had their immigrant founders been prevented from developing those businesses in the U.S., and that would have meant 300,000 lost jobs for Americans. – SAIKO McIVOR

McIVOR: As an employment-based immigration lawyer, the biggest long-term impacts I see of the havoc caused by the Trump administration are the heightened level of people’s mistrust of, fear of, and disgust toward the U.S. government, and the lost business opportunities for talented and highly skilled foreign workers/entrepreneurs and for U.S. businesses. Some foreign entrepreneur clients have openly commented that they will build their business elsewhere and will never return to the U.S.

Google, Intel, eBay, and Yahoo!, for instance, would not have been U.S. companies had their immigrant founders been prevented from developing those businesses in the U.S., and that would have meant 300,000 lost jobs for Americans. Trump’s presidency and his irrational immigration initiatives will continue to wreak major havoc on U.S. immigration law, and this effect will likely last for decades. Trump has built a virtual invisible wall that is extremely harmful to U.S. businesses and the economy in ways that will impact our nation for generations to come.

At some level, this is about surviving the shift in policy and hoping that the political winds change in the future. – DAN DONNELLY

DONNELLY: I stopped trying to guess what type of changes or impact immigration policy would have years ago. For most of the 2000s, I waited for 245(i) to be re-extended (a 2000 law allowing aliens to pay a fine and adjust status in the United States). It never happened. When the threat of DACA being repealed was put forth, I didn’t think it would come to fruition because of the social and financial impact. I was wrong. The court system continues to be extremely backlogged. This is true even though a multitude of cases were administratively closed during the Obama era. Two new judges will be seated in Minnesota in the next year, but if the closed cases are reopened, the backlog will continue. At some level, this is about surviving the shift in policy and hoping that the political winds change in the future.

HENDRICKSON: If the current executive orders remain in effect and other, more stringent immigration reform bills are enacted, then I think there will be fewer lawfully admitted new immigrants to the United States. I also think there is a great risk that these policies will lead to a larger population of individuals living in the shadows and unable to fully participate in our communities. I am concerned about the impact this will have on meeting labor needs in our aging society, especially in rural areas. Additionally, if there are fewer channels for individuals to immigrate to the United States, then other channels may become overburdened. Applications for asylum and immigration court backlogs may increase, making wait times and frustration with our immigration system even worse. I also fear that there will be an increase in trafficking and exploitation as individuals seek to come to the United States despite these strict policies, because they are in such desperate situations in their countries of origin.


DAN DONNELLY has practiced  primarily immigration and criminal defense in Austin, Minnesota since 2002. In addition to his  private practice, he  is a part time 3rd District public defender.

R. MARK FREY is an attorney based in St. Paul, Minnesota, who has practiced immigration law for over 25 years. He has served in the past as a chair of both MSBA’s Immigration Law Section and Human Rights Committee.

DANIELLE HENDRICKSON is a staff attorney at Mid-Minnesota Legal Aid. She represents immigrants in a variety of applications before the U.S. Citizenship and Immigration Services. Danielle graduated from the Kline School of Law at Drexel University in 2014. 

SAIKO McIVOR has 30 years of practice experience in employment-based immigration law and also has an international corporate law background. Saiko leads Dorsey & Whitney, LLP’s immigration law practice, and has been named one of “The Best Lawyers of America” in immigration law.

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