Much has been made of Donald Trump’s statement that all non-citizens in the United States illegally “must go”, an apparent call for mass deportations. It is hardly surprising, but I object to the proposal of mass deportations for many reasons. The humane, economic, legal, and societal damage of mass deportations would be huge.
Apart from why they would be harmful, however, mass deportations are completely unfeasible, as Trump himself has unwittingly demonstrated. To explain how he would toughen immigration enforcement, Trump has released a six-page plan with proposed reforms he apparently would (at least try to) implement if elected.
Actually applying his suggested immigration changes to the current system, however, shows just how unrealistic the suggestion is. If he tried to deport everyone in the United States illegally, implementing Trump’s plan would require decades to complete that goal.
HOW LONG WOULD IT TAKE TO DEPORT EVERYONE IN THE U.S. ILLEGALLY UNDER THE CURRENT LAW?
It is important to remember that the President cannot create law, but rather oversees how it is implemented and enforced. Therefore, if Trump became President, he would still have to follow the laws protecting immigrants, even those here illegally.
If Trump actually tried to remove everyone who is here illegally, he would face two key obstacles. The first is the sheer number of people here unlawfully- an estimated approximately 11 million. Also, with some exceptions, foreign nationals in the United States illegally cannot simply be deported directly by Immigration and Customs Enforcement. Rather, they have a right to contest their deportation in removal proceedings in immigration court.
These proceedings are not just technicalities- many people here illegally often have a legal remedy which provides them lawful immigration status. Regardless of Trump’s desire to deport everyone, removal proceedings are required by law.
A BACKLOG THE SIZE OF OAKLAND- OR PORTUGAL?
Currently, the immigration court system is very backlogged, with cases scheduled as far out as late 2019. A recent study announced that the current immigration court backlog is now over 445,000 cases, with each immigration judge now responsible for an average of approximately 1,400 cases. The Department of Justice is hiring new judges, but there are concerns even more could retire soon.
While 445,000 people in removal proceedings sounds like a lot, remember that entire undocumented population is over 11 million. In other words, right now there is a four year backlog with in immigration court with a group somewhat larger than the population of Oakland. Placing everyone in the U.S. without authorization in removal proceedings would create a backlog larger than the population of Portugal.
This would increase the backlog by about twenty-four times. Considering the current immigration court docket has a four-year wait, someone placed could in removal proceedings with eleven million others could potentially not have an immigration court hearing for over ninety years. (Again, people ordered removed after an immigration court hearing have a right to appeal, increasing the wait even more.)
Presumably, even if Trump believes everyone in the U.S. without authorization “must go”, he would therefore not be able to get his wish under the current law for many decades.
TRUMP’S IMMIGRATION PLAN CALLS FOR DRASTIC CHANGES- BUT WOULD NOT RESULT IN MASS DEPORTATIONS.
Notably, while Trump has said to the media that everyone in the U.S. illegally “must go”, his immigration plan does not directly address mass deportations, or the core reasons that simply deporting those many people would be so difficult. Given the actual difficulty of reaching such a goal, this omission is not necessarily surprising.
Trump’s plan does not even address removal proceedings directly. In fact, it only provides two measures which appear directly aimed at increasing deportations- tripling the number of ICE officers, and the “mandatory return” of noncitizens with criminal convictions.
By themselves, these measures would not increase the rate of deportations dramatically. First, while an expanded ICE might be able to place more foreign nationals in removal proceedings, ICE does not control the immigration courts. As explained above, the immigration courts already have very long waits. Placing more people in removal proceedings would just make the wait longer.
Similarly, the plan does not explain how he would implement the “mandatory return” of foreign nationals with criminal convictions. (Also, this appears to apply to lawful permanent residents, so would only partially be related to the removal of the undocumented.) Under the current law, this could only mean they would necessarily be placed in removal proceedings, while now ICE has discretion to not pursue the case. Again, this would not change that foreign nationals are allowed to contest their removal in deportation proceedings, and would just make the waits longer.
To be clear, Trump is not hesitant about proposing drastic changes to our immigration laws. For example, he proposes the end of “birthright citizenship” (which provides automatic U.S. citizenship for children in this country, regardless of their parents’ immigration status). This step would require a Constitutional amendment. Similarly, he not only proposes completing a wall along the Southern Border, but charging Mexico for the expense. He also calls for completely overhauling key areas of employment-based immigration.
Therefore, if he wanted to eliminate removal proceedings, or pass a law that any foreign national with a criminal conviction would be deported without any further process, he presumably would not be afraid to say so. That he is audacious enough to propose such huge changes elsewhere, but has nothing to allow for mass deportations is telling.
Even looking beyond the provisions in his plan, it would not be realistic for Trump to actually deport everyone here without authorization during his term. Presumably, Trump could try to increase the size of the immigration courts. This, however, would likely take increased budget appropriations from Congress, and not even a ten-fold expansion would permit the government to process everyone’s case within a single term.
Even if he increased the size of the immigration courts, he would also have to increase the size of the government’s immigration appeals board. On top of that, many people who are ordered removed by the government have the right to appeal that decision in Federal courts, which the President does not control and would not be as easily expanded as an administrative agency.
Perhaps he could try to eliminate removal proceedings altogether, but that would require Congress to drastically change laws which have been in effect for decades beyond what any politician (that I am aware of) has seriously proposed. It is very hard to believe such measures would be politically feasible. Again, it is telling that he has proposed a Constitutional amendment for citizenship, but not the elimination of removal proceedings.
There are of course many other issues with deporting everyone who is here without authorization, especially considering Trump’s plan. For example, it is unclear how the government would identify everyone who is here without authorization, even tripling the number of ICE officers. This would be nearly impossible logistically, much less within the bounds of the Constitution. It would also have a major effect on our economy and, as explained above, would be morally objectionable in a number of ways.
While Trump’s demand that everyone without authorization “must go” is objectionable in many ways, even his own plan shows that it completely unrealistic. While it is unlikely, seeing this contradiction may push even more people to a common sense solution for immigration reform.
Follow us on Twitter! https://twitter.com/BeanLloydLLP