Last week’s article addressed whether Candidate Trump, if elected President, could end the DACA (Deferred Action for Childhood Arrivals) program. This week, I address the larger question of the approximately 11 million persons currently in the United States without legal status. Candidate Trump has called for the deportation of all undocumented people in the United States. Could President Trump do that?
Question: Could President Trump simply deport the “11 million”?
Answer: Yes, No, and Maybe.
Yes, there are some people President Trump could deport quickly.
All Presidents have extensive, though not unlimited, powers when it comes to immigration. Much of this power is expressed in the policy directions they give to the Department of Homeland Security, the Executive Branch agency that actually implements the immigration laws. At any given time, there are thousands of people living in the United States under “orders of supervision,” meaning that they have been found to be deportable, but that for certain reasons the Department has decided not to deport them yet. Many of these persons are women and children from Central American countries, and reasons can include humanitarian grounds or the fact that some countries (China and Cuba, for example) will not accept them back. President Trump would have the authority to direct the Department to cancel all discretionary Orders of Supervision and remove these individuals, assuming that there were places for them to go.
No, there are some people President Trump couldn’t quickly deport.
A President’s powers over immigration are not unlimited, however. The United States has an extensive system of immigration laws and regulations that grant most undocumented people the right to be heard before an Immigration Court, and for Immigration Judges to grant any applicable “relief” – in other words, to not deport people if they meet certain requirements. Examples would include people who prove that they have a reasonable fear of persecution, death, or great bodily harm in their home country, or people who meet the legal requirements for “cancellation of removal.” These rights are granted by law, and President Trump could not overturn them by himself.
In addition, many undocumented people in the United States actually have the right to legal status, but either do not know it or have never sought to enforce it. Most people who fall into this category have an immediate relative who is a U.S. citizen and who could petition for them to receive legal residence. Occasionally, I even encounter people who do not know that they are already U.S. citizens. Even if currently counted among the “11 million,” people in these types of circumstances would not be deported quickly, although they would have to address immigration issues they may have previously been ignoring.
For some people, the answer is “maybe.”
Even if President Trump couldn’t just sign an order to deport 11 million people, there are steps he could take that would make it much harder for undocumented people in the United States to continue living here. He could, for example, instruct the Department to adopt a “zero-tolerance” policy for all immigration violations and to push every case through full Immigration Court hearings. Such a policy would require massive new spending on both the Department of Homeland Security and the Department of Justice (which operates the Immigration Courts), as the immigration court system is badly overwhelmed even by the present numbers. In addition, President Trump could also direct the Department to cancel programs like TPS (Temporary Protected Status), which allow certain undocumented people from countries with serious disasters or dangerous conditions (such as Haiti, Sudan, and Syria) to remain in the United States until conditions improve, and DACA (Deferred Action for Childhood Arrivals), which has allowed some people brought to the United States as children to remain and work temporarily. Of course, implementing these types of policies would also require substantial new spending on ICE agents to locate and detain the approximately 1 million people who would be affected by the end of those two programs alone, not to mention the costs of prosecuting those cases through the immigration courts.