The Future of Deportations Under Trump

People walk past a mural painted on a border structure in Tijuana, Mexico. People walk past a mural painted on a border structure in Tijuana, Mexico. Julie Watson / AP

The deportation of Guadalupe García de Rayos in Phoenix, Arizona, may be giving the undocumented population in the U.S. its first sense of what the next four years will feel like. Rayos is a 35-year-old mother of two who has lived in the U.S. for 21 years. In 2008, local deputies caught her using a fake social security number after they raided her work, and since then she has been required by Immigration and Customs Enforcement (ICE) to show up at regular interviews. Every year she’s talked to an agent, then been released back to her family in the U.S. But Wednesday Rayos was arrested, and on Thursday agents put her in a van to be deported back to Mexico.

In January, President Trump signed an executive order that vastly expands who the U.S. considers a deportation priority. The order received little immediate media attention at the time of signing, likely because of the many other controversial orders the president released simultaneously. The order is full of vague language, and interpreting it has left a lot of questions as to what’s in store for the country’s 11 million undocumented immigrants. Trump’s administration has said the changes were done to make the U.S. safer, ridding communities of criminals. This may, in part, be true, but it will be so because Trump’s order greatly increased the number of people considered criminals worthy of deportation. An estimate from the Los Angeles Times says Trump’s order could include as many as 8 million undocumented immigrants, all of whom would be eligible for deportation at any moment.

“This is designed so Kellyanne Conway and [Sean] Spicer can stand up and say, ‘Well, we’re prioritizing criminals,” said David Leopold, an attorney and past president of the American Immigration Lawyers Association, referring to the counselor to the president and the White House press secretary, respectively. “But in reality they’re going after anyone they can get their hands on—period. It’s a ruse.”

Rayos was 14 when she crossed the border in Nogales, Arizona. In Phoenix, she married, raised two children, and for a while she worked at Golfland Sunsplash, a water park in a city suburb. This was in 2008, when Maricopa County Sheriff Joe Arpaio’s deputies carried out regular immigration raids, and Rayos was one of those arrested. To get the job she used a fake social security number. So, when she was arrested, she was charged with a felony and spent six months in an immigration jail. After this she had an open deportation order, meaning ICE could her back to Mexico at any time. It chose Thursday to act on that order, and as she left the ICE facility in a van a group of protesters blocked its path. One man even tied himself to its tire.

People like Rayos were seen as the reason why, in 2014, Obama developed levels of deportation priorities. Obama deported more people than any other president—2.5 million—which earned him the nickname “deporter-in-chief” from immigration advocates. But Obama also prioritized who he deported, focusing on the “Bad Hombres,” to use a Trump reference. His plan created three strata of deportable offenses: at the top were violent felony offenders and people apprehended at the border; next were those with multiple misdemeanors, offenses like DUIs and domestic abuse charges, and also recent arrivals; lastly were people who’d come to the U.S. prior to 2014 and who’d been charged nonviolent crimes. The policy left enforcement up to ICE’s discretion, and it seemed for eight years Rayos fell in that lowest priority.

Immigration attorneys are still trying to make sense of the Trump’s order, mostly because of its vague language—probably done intentionally. The order, as Leopold pointed out after Trump signed the order, will follow through on Trump’s campaign-promise of mass deportations.

There is no priority anymore. The language in the order says that any unauthorized immigrant convicted of any crime can be deported. It makes no distinction between what type of crime this will be, which Leopold said has the potential to put murder on par with rolling through a stop sign.

One of the most controversial terms in the order is a line that makes acts that might “constitute a chargeable criminal offense” deportable. This has been interpreted as meaning an immigrant doesn’t have to be convicted of a crime, doesn’t even have to be charged with a crime, they just need to have probably committed one. Lawyers say this will likely be used to deport anyone who crossed the border outside of an immigration checkpoint. The distinction lies in whether someone overstayed a visa, or if the person crossed the border through the desert.

Migrants who come to the U.S. on a visa, then overstay their visa, pass through immigration checks. And because overstaying a visa is a civil offense, this would not be a deportable crime, Leopold said. But migrants who crossed the border through the deserts of any border state, avoiding customs checkpoints, would have committed a criminal offense by entering the U.S. illegally. If ICE agents can get an immigrant to admit they crossed this way, it could be taken as a “chargeable criminal offense,” and therefore a deportable offense. Leopold called it a “tool to criminalize the undocumented population.”

Trump’s order could also return the U.S. to a policy not in national use since 2007, when the Bush administration raided worksites and paraded handcuffed migrants in front of national media. These raids were used to reinforce the concept of self-deportation, an immigration philosophy that many Trump officials support. Its weapon is intimidation—creating the fear in undocumented communities that at their homes, their jobs, and in their cars on the road, looms the specter of ICE, and with it deportation.

Another tool implemented by George W. Bush, and that Trump will likely use, is giving back 287 (g) authority to local law enforcement. Trump’s order said explicitly that he wanted “to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer.” The 287 (g) authority enabled any local jurisdiction with the right to question a person on their immigration status. If they couldn’t prove citizenship, local authorities handed them over to ICE. This was used most pervasively, and attracted the most attention nationally, in Phoenix.

There the Maricopa County Sheriff’s Office, led by Arpaio, descended upon mostly-Latino neighborhoods and stopped people for trivial traffic violations, emptied out restaurant kitchens, even arrested workers at local water parks, like in the case of Rayos. This authority was used as a way to question anyone who looked like they might be in the country illegally, and Arpaio’s office was later found by the Justice Department to be in violation of racial profiling laws.

Rayos has been called the first display of Trump’s new executive order. If that holds, then the rest of the nation may look a lot like Phoenix did this past decade, a time where undocumented communities lived in constant fear of deportation from local law enforcement, regardless of their crime, or if they were a mother who’d spent their entire adult life in the U.S.

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