President Donald Trump’s plan to round up and deport millions of undocumented immigrants is likely to trigger waves of lawsuits that may soon dwarf the legal fight over the administration’s temporary ban on travelers from seven Muslim majority countries.
The Department of Homeland Security is pushing ahead with what the American Civil Liberties Union calls a “hyper-aggressive mass deportation policy.” The crackdown mandated by the president’s Jan. 25 executive order includes hiring thousands more border patrol and immigration agents and building a wall along the Mexican border.
The ACLU and other groups, fresh from their success in blocking Trump’s Jan. 27 ban on refugees and travelers and students from Syria, Iran, Yemen and four other nations, are vowing to challenge the crackdown on undocumented immigrants too.
Immigration attorneys said they’ve only begun to analyze the administration’s changes to rules surrounding immigration enforcement, which might take months, if not years, to fully take hold. Chicago lawyer Mike Jarecki said there’s “no doubt” that the government will be swamped with litigation once enforcement of the revised policies begins. The plan’s biggest weakness, he said, is the potential for racial profiling and discrimination, since local law enforcement officers without proper training could be tapped to help identify and detain undocumented immigrants.
“The memos make it very clear that they want to create an enforcement environment, and they don’t want to just instill fear -- they want to go after people, put them through the system and ultimately deport them," Jarecki said.
White House Spokesman Sean Spicer told reporters Tuesday that mass deportation wasn’t the policy goal. Rather, the administration wants to clarify the rules for legal immigration while unshackling Immigration and Customs Enforcement agents who had been “handcuffed” by policies that determined who “could and couldn’t be adjudicated.”
Trump’s crackdown on undocumented immigrants may have economic consequences, such as straining an already tight U.S. job market. One study suggests that removing all of them would cost the economy as much as $5 trillion during 10 years.
The residential real estate market may also suffer as immigrants have long been a pillar of growth in home-buying. One-third of the 11 million unauthorized immigrants in the U.S. live in a home that they or a family member or friend own, according to an analysis by the Migration Policy Institute, a Washington-based think tank.
Under President Barack Obama, regulations for undocumented residents only applied to criminal aliens, said Mark Krikorian, executive director of the Center for Immigration Studies, a Washington-based think tank. Still, more than 2.5 million undocumented immigrants were deported during Obama’s two terms. Now, being in the U.S. without papers will be the crime, Krikorian said.
“The Obama approach of letting all illegal residents stay unless they did something wrong -- that’s over,” said Krikorian, who thinks the administration should go even further and eliminate exemptions for children brought illegally to the U.S. “You’re not going to ever have immigration law taken seriously if it’s just considered an afterthought.”
Much of the plan outlined Tuesday in a pair of memos by Homeland Security Secretary John Kelly appears to enforce laws that are already on the books because many individuals who are in the U.S. without documentation are legally removable, said Bryan Johnson-Xenitelis, a New York immigration lawyer with more than a decade of experience in the field.
Even so, there will be waves of lawsuits challenging the proposed expansion of the “expedited removal” process that’s already available under current law, he predicted. The proposal would allow ICE agents to deport any undocumented immigrant who has been in the U.S. for less than two years, Johnson-Xenitelis said.
“Anyone who cannot prove in the heat of the moment that they either have legal status or that they’ve been here continuously for two years could be dragged off to detention and removed without getting a lawyer or a hearing before a judge,” said Johnson-Xenitelis, who also teaches crime and immigration at New York Law School. “In the prior administration, this only happened to people found at or near the border who had been in the U.S. for less than 14 days.”
Even opponents of the crackdown concede undocumented immigrants who haven’t been in the U.S. for two years may find it difficult to convince a court they’re protected from deportation, said Baher Azmy, legal director at the Center for Constitutional rights. Those covered by the travel ban had been vetted by the U.S. and had visas or green cards.
“The Muslim ban was so obviously unconstitutional,” Azmy said. “If someone has no legal right to be here, it’s going to be hard to prevent the executive from removing them."
The litigation will echo the suits about Trump’s travel ban, said Marielena Hincapie, executive director of the National Immigration Law Center. The arguments will likely include claims the policy violates due process and equal protection rights and protections against unreasonable searches and seizures, she said.
Trump’s proposal to ship undocumented immigrants to Mexico to await their immigration hearings -- assuming the country would take them -- is vulnerable to attack, Hincapie said. Deporting people before they’ve had a hearing, or been ordered out of the country by a judge, “raises a whole host of constitutional violations,” she said.
That provision may violate U.S. law and international treaty obligations that require the government to assure that people arriving in the U.S. have a meaningful opportunity to apply for asylum, according to David Leopold, a Cleveland immigration lawyer and former president of the American Immigration Lawyers Association.
Sending them to Mexico to await hearings would be “unconscionable,” he said, because it could put vulnerable people at risk in that country, including teenagers, women and children.
Stephen Yale-Loehr, a Cornell University law professor, said the immigration directives also pose logistical and financial challenges. Already, immigration judges face a 2 1/2-year backlog of cases, he said. “Unless the administration finds funding to hire more immigration judges, those backlogs will skyrocket,” he said.
A Department of Justice spokeswoman said most detained immigrants receive an initial hearing in 20 days, but she couldn’t immediately provide data on how long it takes to resolve cases.
While Trump’s crackdown on undocumented immigrants wasn’t met with an instant uproar like his travel ban, it will eventually affect millions more people, Yale-Loehr said.
“It’s going to take a while to ramp up, but by the fourth year of the Trump administration, I predict we are going to see more people deported than any prior administration,” he said.