Trump’s Mass Deportation Plan Has One Major Vulnerability

Donald Trump campaigned on a promise of mass deportations beginning on the first day of his presidency, and from every indication, he intends to make good on it. He has tapped white nationalist–friendly hard-liners for key posts in the executive branch, and he claims that the government will deport millions of migrants by the end of 2025. If Trump’s public statements and the actions of his first administration are any guide, the new administration appears poised to expand detention facilities, attempt to reinstitute family separations, end programs like temporary protected status, deputize state and local officials and members of the military as immigration officers, and attempt to eliminate or limit the right to asylum for individuals fleeing persecution. But for those familiar with the nation’s immigration system, a key question about mass deportations is how the administration will contend with the need to hold hearings for individuals apprehended within the U.S. Generally, noncitizens who are present in the country (as opposed to arriving at the border) may be deported only following a hearing at which they can present evidence that they’re not deportable or are eligible for asylum. U.S. immigration courts have yearslong backlogs, so the need for hearings is likely to be a key choke point in Trump’s plan to rapidly deport millions. Perhaps the administration will just ignore the hearing requirement, because it has no intention of operating a “precise, legal” deportation scheme. But as much as lawlessness is part of Trump’s modus operandi, the administration seems unlikely to disregard the law entirely. The people who will carry out mass deportations—everyone from Immigration and Customs Enforcement officers to sheriffs to lawyers and contractors—want to believe that they are upholding the law. Rather than direct them to defy it, Trump’s appointees will likely come up with arguments for why mass deportations are legal. When it comes to hearings, the goal will be to find a way around the need to go before an immigration judge, so that individuals can be removed from the country quickly (perhaps within hours of being apprehended) and with no real process. Advertisement The play, specifically, will be to vastly expand what’s known in immigration law as “expedited removal.” Established by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, expedited removal was designed to allow immigration officials to shut the door to migrants who appear at the border without permission to enter. The statute provides that an immigration officer may deport such a person “without further hearing or review” unless they claim asylum or fear persecution. Hundreds of thousands of noncitizens arriving at the border are already deported every year through this “shadow removal” regime, as Jennifer Lee Koh terms it. But the statute is not limited to the border. Technically, it allows the Department of Homeland Security to use expedited removal against most individuals residing anywhere in the United States who entered without permission and who do not “affirmatively show … to the satisfaction of an immigration officer” that they have been present in the country for at least two years. And there’s the rub. Deporting someone living in Atlanta or Milwaukee on the say-so of a single immigration officer is at odds with the Fifth Amendment to the Constitution, which guarantees due process of law to everyone in the United States regardless of immigration status. So, historically, expedited removal has generally been limited to people arriving at the border or those present in the U.S. for fewer than 14 days who are apprehended within 100 miles of the border. But the administration won’t care. During Trump’s first term, DHS attempted to expand expedited removal to the full limits of the statute, and the incoming administration is poised to repeat the gambit. DHS will likely authorize the use of expedited removal against anyone a single immigration officer thinks lacks status and who cannot come up with affirmative proof that they have been in the U.S. for two years. And it will issue “guidance” stacking the deck against individuals whom immigration officers target—for example, by limiting their time to produce evidence or providing that only certain forms of documentation will be considered. An individual who doesn’t have the right papers on them when they are approached by an immigration officer at 7 a.m. might be on a plane to Mexico by the evening. Advertisement Deporting immigrants in this manner is not only an insult to due process; it will often put the nation in violation of its international obligations. Expedited removal isn’t meant to be used against individuals who credibly fear persecution in their home countries. But statements by Trump’s surrogates and actions by his previous administration suggest that this requirement will be honored in name only. According to Customs and Border Protection’s own guidelines, immigration officers are supposed to ask those in expedited-removal proceedings about their fear of return. The administration could easily roll back this guidance such that immigrants who do not know to state their fear of return will be summarily deported. The bar for passing a credible-fear interview, which is intended to serve merely as a screening tool to determine whether an individual can make their case in court, has historically been very low. Even with this low bar, those with meritorious asylum claims have been erroneously deported. But the prior Trump administration unlawfully raised the bar for credible-fear interviews and will likely attempt to do so again, allowing ICE officers to deport many more individuals with meritorious claims for asylum with little to no oversight or review and with no recourse for the noncitizen. Officers will move particularly quickly against those without a lawyer. Related From Slate Mark Joseph Stern The Most Perverse Part of the Hunter Biden Pardon Read More The upshot is that even though most immigrants residing in the U.S. without permanent legal status are ineligible for expedited removal, hundreds of thousands—including individuals who are targeted because of their political beliefs, authorized immigrants, and possibly even citizens who don’t fit the Trump administration’s image of a “real” American—could be rounded up and deported without the opportunity to appear before an immigration judge. The administration will bank on individuals with strong cases being unable to litigate them once they’re deported. Families will be torn apart. Prices will spike. And an untold number of individuals who are legally entitled to asylum will be returned to countries where they’ll face death or serious harm. Advertisement Although groups like the ACLU will challenge the expanded use of expedited removal, don’t look to the courts for a quick remedy. IIRIRA strips the courts of jurisdiction to hear challenges to many immigration policies. And even if the courts reach the merits of those cases, the administration has the power of unilateral action: As it did during Trump’s first term, it can change the rules, restart deportations in a slightly different way, and force lawyers and courts to play catch-up as planes full of deportees depart the U.S. Perhaps the most relevant precedent for the situation the nation faces is the battle over the Muslim ban Trump put in place at the beginning of his first administration; that policy threw the border into chaos and was repeatedly halted before the Supreme Court allowed a cleaned-up, watered-down version to take effect. That experience teaches that the key to resisting mass deportation will be to slow the program’s momentum to allow Congress, the courts, civil society, and the business community to push back. Recommended for You I’ve Started Dating a Very Sexy, Younger Woman. But I’m Worried About What Inevitably Comes Next. Our Cheap Friends Keep Asking for “Recommendations.” We Can’t Trust Them to Do Right By Local Businesses. My Ex Is Such a Typical, Conservative Guy. And He’s Doing a Major Disservice to His Teen Daughter. There’s no silver bullet. But states can make clear that they’ll resist the administration’s unconstitutional plans, as Illinois Gov. J.B. Pritzker has done; strip immunity from sheriffs and others who participate in indiscriminate roundups; impose civil and criminal liability on those who participate in illegal deportations; and allocate funding for immigrant representation, following the lead of states such as New Jersey and New York. Nonprofit organizations and lawyers can provide community education on the limits of expedited removal, the right to a hearing, and the ways individuals can claim asylum or show they’re not subject to expedited removal. And business leaders can take a stand to protect the economy. None of this would prevent the administration from going to Congress and seeking the resources to run a humane, efficient immigration system that complies with the Constitution and the nation’s international obligations. But since it won’t do that, the priority must be to maintain the rule of law. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.