President-elect Donald Trump made immigration a centerpiece of his presidential campaign, often offending immigrants and others with his promise to build a wall along the U.S.-Mexico border. Trump also pledged to remove the approximately 11 million undocumented immigrants in the United States, a proposal that frightens immigrant communities.
There are a number of ways that a Trump administration might seek to accomplish mass removals, but they are fraught with legal obstacles and potential public backlash.
Removal of immigrants with criminal problems
In the beginning of his campaign, Trump targeted immigrants from Mexico as “criminals.” In so doing, he tapped into popular fears that persist even though social science research has demonstrated that immigrants are more, not less, law-abiding than native-born Americans.
In a recent interview on “60 Minutes,” Trump promised to immediately deport 2 million to 3 million undocumented immigrants, with the initial plan to focus on criminals. His administration may broaden the net to include those merely arrested for minor crimes.
In addition, Trump may seek to encourage state and local law enforcement cooperation with federal immigration enforcement authorities. Such efforts may include seeking noncitizens arrested of all crimes to be detained and turned over to federal authorities. Allowing state and local law enforcement to participate in the federal enforcement is not risk free. In Arizona, Maricopa County Sheriff Joe Arpaio once supervised a sheriff’s office deputized to enforce immigration laws but was later found guilty of racial profiling.
Along these lines, there have been threats of federal defunding of “sanctuary cities” by a Trump administration. Such action would require an authorization by Congress and still might be subject to legal challenges.
Trump promised to create a “deportation force” to remove all undocumented immigrants from the country. He suggested something akin to President Dwight Eisenhower’s “Operation Wetback” in 1954, a military-style operation that resulted in the deportation of hundreds of thousands of persons of Mexican ancestry, including many U.S. citizens.
One possibility short of a mass deportation campaign is to increase the use of workplace raids. In 2008 during President George W. Bush’s administration, immigration authorities conducted the largest single raid of a workplace in U.S. history at the Agriprocessors Inc. plant in Postville, Iowa, resulting in the arrest of nearly 400 immigrant workers. Immigrant rights advocates claimed that the raids violated the civil rights of the workers.
A national controversy followed and likely convinced the Obama administration not to vigorously pursue workplace raids.
Along these lines, the Trump administration may seek to require the use by employers of a federal computer database known as E-Verify, which currently allows employers voluntarily to verify their workers. The Trump transition team reportedly is drafting legislation to make use of the system mandatory by all employers. One major problem is that the computer database is prone to errors. Some errors result in employers discharging workers who are legally entitled to work.
The Trump administration’s transition website has promised to “end catch-and-release,” which could increase the use of detention and presumably will resist allowing immigrants to “bond out” of custody while their proceedings are pending. Removal proceedings can take years, with the immigration courts buried in a massive backlog.
The Obama administration used detention aggressively in 2014, when the nation experienced the migration of thousands of women and children fleeing violence in Central America. That detention has resulted in litigation. In addition, the Supreme Court will soon hear a constitutional challenge to detention without possibility for release and any review by a court.
In short, increased use of detention by a Trump administration is likely to result in many lawsuits. Expect those lawsuits to last for years.
Time will tell on how effective any of these steps will be in reducing America’s undocumented population.
Kevin R. Johnson is dean of the University of California, Davis, School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies. Contact him at firstname.lastname@example.org.