Travel Ban Aside, Trump Has Vast Legal Arsenal for Deporting Millions

Updated on
  • President can tighten border, round up undocumented aliens
  • Even so, any crackdown will likely face court challenges

Trump Team Plans Wide-Ranging Immigration Crackdown

Whether President Donald Trump’s ban against travelers from seven Muslim majority countries is saved by revision or scrapped by the courts, he’ll still have a vast legal arsenal at his disposal for limiting immigration into the U.S. and deporting millions of undocumented people.

The law vests the president with broad authority over immigration, said Austin Fragomen, whose Manhattan-based Fragomen, Del Rey, Bernsen & Loewy is the biggest U.S. law firm focused on immigration. Trump hasn’t wasted time tapping his power.

The administration said Tuesday it will try to deport almost all undocumented immigrants caught in the U.S., hire thousands more border patrol and immigration agents and begin building a wall along the Mexican border, enacting an immigration crackdown the president sought in a Jan. 25 executive order.

Trump’s Jan. 25 directive, entitled “Enhancing Public Safety in the Interior of the United States,” signed two days before his travel-ban directive, could result in hundreds of thousands, if not millions, of immigrants being rounded up for deportation, according to Kelly Lytle Hernandez, an immigration historian at the University of California, Los Angeles. The order directs federal agencies to vigorously enforce existing immigration laws and vows to withhold federal funds from jurisdictions that don’t comply.

“We are living in a new reality and that order is the beginning,” said Hernandez, a Trump critic. “We could quickly begin to see neighbors disappear.”

The Department of Homeland Security oversees almost two dozen agencies that determine who enters and leaves the U.S., including Immigration and Customs Enforcement, Customs and Border Protection and Citizenship and Immigration Services. The agency has an annual budget of $41 billion and more than 229,000 employees. Trump has broad discretion to use the money and employees as he sees fit without seeking approval from Congress.

Bigger Force

The president wants to bolster that force, saying he’ll hire 10,000 more agents and use state and local law enforcement as immigration officials. As part of the executive order, Trump vowed to strip funds from so-called sanctuary cities that refuse to cooperate with his crackdown. Several state attorneys general have vowed to fight that initiative.

“He can essentially unleash ICE officials to enforce however they choose,” said Cristina Rodriguez, a Yale Law School professor, referring to Immigration and Customs Enforcement.

Trump’s Jan. 25 order delivered on a campaign promise to crack down on immigration. The order says many undocumented immigrants, or those who violate the terms of their visas, “present a significant threat to national security and public safety.”

Supporters of Trump’s policies argue that the U.S. has allowed too many immigrants to enter the country illegally, resulting in lost jobs for citizens and waves of crime. Immigration experts say the vast majority of people here illegally do not have criminal records and commit relatively few crimes.

The president has broadened the Obama administration’s focus on immigrants who have committed serious crimes to include almost anyone who entered illegally, according to Rodriguez. The government may also choose to jail more people before deportation, she said.

Trump may also expand expedited removal, which allows immediate deportation of people without proper documentation who are found within 100 miles of the border and less than two weeks after entry, Rodriguez said. That would minimize the cost of detention facilities and increase the number of people deported without a hearing.

But it would likely face court challenges. “It’s not clear that that’s constitutional,” she said

Tighten Criteria

The president can instruct State Department and ICE officials to tighten criteria for letting people into the U.S. and to increase searches at the border, where agents have much more freedom to rifle through people’s belongings than police inside the country. Trump has said the order will hasten adoption of “extreme vetting” procedures.

Trump has “very broad authority” to tighten entry requirements, particularly if he avoids policies that unfairly single out Muslims or other groups, Fragomen said.

“The only restraint on doing that now is we want to facilitate visitors and people coming to visit the U.S. and facilitate global business,” he said. “But the U.S. could be much more strict in terms of the screening process.”

The State Department, with a directive from Trump, could slow-walk visas with longer background checks, according to David Leopold, a Cleveland immigration lawyer and former president of the American Immigration Lawyers Association. The president could also influence Citizenship and Immigration Services to slow down the adjudication of immigration and asylum cases, he said.

“We rely on the executive branch for most immigration processing, and they could put a monkey wrench in that process,” Leopold said in an interview.

Travel Ban

Trump’s Jan. 27 order also fulfilled a campaign promise, this one to restrict immigration for Muslims. As president, he said the plan wasn’t a Muslim ban but intended to block travelers from countries rife with terrorism. In the face of judges ruling against the ban, Trump promised to issue a revised order this week, presumably avoiding some of the legal issues that caused judges across the country to block parts of it.

The new order may avoid targeting green-card holders, who are legal permanent residents of the U.S., and people who have existing valid visas, immigration experts said.

It will have to address judges’ concerns that it is intended to target Muslims, said Pratheepan Gulasekaram, who teaches constitutional law at Santa Clara University.

The president will need to provide a “bona fide reason” for singling out residents of those countries, which could include a national-security threat, Gulasekaram said.

Trump also has the power to cap the number of refugees -- people fleeing war and persecution in their home countries -- under the 1980 Refugee Act, Gulasekaram said. Trump’s order to lower the number of admitted refugees to 50,000 in fiscal 2017 from 110,000 the year before hasn’t been questioned by the courts.

If Trump pursues aggressive measures to slow down immigration and increase deportations, he will likely trigger fresh waves of litigation, Leopold said. Lawyers could accuse Trump of violating the 1965 Immigration Reform Act, which prohibits immigration decisions based on race, gender, nationality, place of birth or residence.

Campaign comments by Trump about Mexicans and Muslims may come back to haunt him in court too. “He’s going to wind up in court more and more often,” Leopold said.

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