In the days since Americans chose their next leader, President-elect Donald Trump has made clear his immigration plans include deporting or incarcerating undocumented immigrants who are criminals, a number he estimates at as many as 3 million.
As he works to implement the immigration crackdown that guided his populist campaign, he will have to contend with state and local officials in California who have resisted the federal government on immigration before and appear poised to do so again. The result could be a struggle between different levels of government over the fate of millions.
The enforcement of America’s immigration laws falls to the Department of Homeland Security, and that department has significant discretion to determine how those laws are carried out and who is targeted, given limited time and agents.
“The way enforcement happens, it’s set through priorities and memos that come out of DHS,” said Ronald Coleman, government affairs manager for the California Immigrant Policy Center. “It’s not specified in any federal statute how enforcement is supposed to happen.”
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President Barack Obama was denounced by liberal allies for overseeing more deportations than any previous president – more than 2 million people between 2010 and 2014, according to Politifact. In 2014, the Department of Homeland Security issued new enforcement guidelines focusing agents on immigrants who had serious criminal records or who illegally crossed the border after the start of 2014. It also allowed DHS to consider such factors as how long people had been in the United States and whether they had families.
That stance could change under Trump.
We have a lot of these people, probably 2 million, it could be even 3 million, we are getting them out of our country or we are going to incarcerate.
President-elect Donald Trump in ‘60 Minutes’ interview
According to a report in the Los Angeles Times, Trump’s advisers have begun constructing an immigration enforcement policy that would expand the universe of immigrants targeted for deportation by bolstering workplace raids and looking beyond illegal immigrants who have been convicted of crimes, reeling in those who have been charged but not convicted or who are suspected of gang membership or drug dealing.
“What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably 2 million, it could be even 3 million, we are getting them out of our country or we are going to incarcerate,” Trump said in an interview with “60 Minutes.”
In addition to changing enforcement priorities, Trump is likely to dissolve one of Obama’s signature immigration initiatives. He has criticized an executive program known as Deferred Action for Childhood Arrivals that immunizes young, unauthorized immigrants against deportation and allows them to earn work permits.
The figure of 2 million to 3 million Trump cited in that interview has come into question.
Democratic leaders in immigrant-friendly California are convinced his plan would sweep up people who aren’t a serious threat to society.
“It is erroneous and profoundly irresponsible to suggest that up to 3 million undocumented immigrants living in America are dangerous criminals – and threatening to immediately deport them only exacerbates the unprecedented angst and anger currently dividing our American community,” Senate President Pro Tem Kevin de León, D-Los Angeles, said in a Sunday statement. “It also appears to be a thinly veiled pretense for a catastrophic policy of mass deportation that will tear apart families and weaken our economy.”
A 2013 report from the Department of Homeland Security estimated that about 1.9 million “removable criminal aliens” lived in the United States, a figure that included both unauthorized immigrants and noncitizens with some form of legal status. If Trump is basing his estimate on that number, that means he’s talking about deporting some people who are here legally.
By another measure, a 2015 report from the Migration Policy Institute estimated that about 1.4 million undocumented immigrants fit the 2014 enforcement priorities laid out by the Obama administration, which allowed for factors like family unity and focused on serious crimes. Under the administration’s previous guidelines, the study found, some 3 million undocumented immigrants would have been prioritized for deportation.
Any immigration policy shift would have a sizable impact on California, where the Pew Research Center estimated about 2.3 million undocumented immigrants lived in 2014.
Of the roughly 74,000 people booked into California jails in a given month at the end of 2015, about 6,200 were “criminal aliens,” or 8.4 percent, according to the California Board of State and Community Corrections. The figure may be incomplete because counties self-reported that data and use their own definition for criminal aliens, or in some cases exclude that category. As of 2015, the California Department of Finance estimated that about 16,000 undocumented immigrants were incarcerated in state facilities, or about 12.7 percent of the inmate population.
Regardless of the numbers Trump cited, the Obama administration’s experience demonstrates how local governments wield meaningful power to reject or weaken federal immigration policies.
With deportations at an all-time high, state and local officials fought a now-defunct program, known as Secure Communities, in which local law enforcement collaborated with federal immigration officials. California Attorney General Kamala Harris told local law enforcers they could refuse federal requests to hold immigrants.
California built on that break from the federal government in 2013, when Gov. Jerry Brown signed a bill commonly known as the Trust Act. That measure bars jails from honoring federal requests to hold onto undocumented immigrants after their release date unless they have been convicted of or charged with serious or violent felonies.
In effect, the law asserts California’s right to protect people from deportation for low-level crimes. Subsequent court decisions fortified that legal precedent, saying jails could not be compelled to detain immigrants past when they’re eligible for release.
The Trump administration could sue California over the 2013 law, perhaps arguing the statute is pre-empted by federal law.
But even with the prohibition on holding onto certain immigrants, Immigration and Customs Enforcement can still communicate with local officials in an effort to scoop up immigrants when they are released, and Trump could push for a change to federal rules to mandate sharing information.
Fingerprints from people booked into county jails flow into federal databases, allowing authorities to see whom locals are holding. Sheriffs can allow jail visits and communicate with officials about whom they are detaining and when they will be released. San Diego County has ICE agents stationed in jails that process inmates.
“The feds will ask for information and we can provide information to the feds – ‘do you have information on such-and-such person, yes we do,’ ” said Cory Salzillo, a lobbyist for the California State Sheriffs Association. “Communication is not precluded, so agencies will discuss with ICE who they have. How proactive that is depends on the agency.”
That’s not necessarily the case in so-called sanctuary cities, jurisdictions like San Francisco or Santa Clara County, that as a matter of policy limit cooperating with federal immigration officials. Trump has threatened to withhold federal funding from those locales.
“Sanctuary cities have taken the position that they won’t even notify ICE, that they won’t cooperate in any way,” said Martin Mayer, an attorney who counsels the California State Sheriffs Association and the California Police Chiefs Association but stressed he was not speaking on their behalf. “The argument that’s being posited by the president-elect is, if you don’t cooperate, we’ll cut your federal funding. Can they do that? Sure.”
But those matters pertain to immigrants already in custody. Before it gets to that point, local police departments have wide autonomy in their treatment of immigrants.
Sacramento interim City Manager Howard Chan said on Tuesday that Sacramento police do not do immigration checks on residents.
In Los Angeles this week, the city’s police chief, Charlie Beck, said he would preserve a decades-old policy barring officers from initiating contacts solely based on suspicions about someone’s immigration status.
Such stops have been challenged as unconstitutional, and a legal fight over a tough Arizona law led the state to say officers couldn’t detain suspects purely based on their immigration status. But a Trump administration would likely have little power to dictate how cops do their jobs.
“Policing is local,” Mayer said, “and the feds can’t dictate how they’re going to function.”
Anita Chabria contributed to this report.