President-elect Donald Trump could find it quite easy to reverse Obama administration policies that have shielded certain undocumented immigrants from deportation. From there, however, things would likely get difficult pretty fast if he wants to make good on his promise to immediately deport several million illegal immigrants who are "criminals."
Revoking Obama’s executive orders and adjusting priorities memoranda at the department and agency level can happen at the stroke of a pen, although likely litigation from immigration advocates could slow the implementation of Trump's changes. The primary difficultly, according to immigration experts and former agency heads from both the George W. Bush and Obama administrations, will stem from enforcing stricter border security and deportation procedures without overwhelming an already backlogged system.
Over the course of the campaign, Trump at times talked of a mass deportation program that would have removed all of the estimated 11 million undocumented immigrants in the United States. Few found the proposal realistic, with estimates that it would require 85,000 new Immigration and Customs Enforcement agents. In revised remarks since his election, Trump has instead said he will prioritize removing 2-3 million who are “here illegally” and “are criminal and have criminal records.”
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ICE tracks that number, and most recently found there are 1.9 million “criminal aliens” that are potentially legally removable. That figure, however, includes those in the United States with legal status, such as individuals with a Green Card. John Sandweg, who served in the Obama administration as general counsel for the Homeland Security Department and completed a brief stint as ICE’s director, said that number is “inflated dramatically” and “not rooted in science.”
While Trump has focused his rhetoric on gang members and drug dealers, Sandweg said the incoming administration would not approach the 2-3 million range without including “the most petty offenses,” such as traffic violations. Ben Gitis, director of labor market policy for the American Action Forum, said the total undocumented immigrants convicted of criminal activity actually numbers around 820,000.
John Torres, who served as ICE director at the end of the George W. Bush administration and into the beginning of Obama’s, said the agency identified jails and prisons throughout the country and extrapolated out the number who are foreign born to come up with its estimate. He acknowledged the formula was imperfect, but said it provides a “pretty good estimate.”
Torres, who is now the chief operating officer at Guide Post Solutions, said revoking an Obama-era memo saying ICE agents “must regularly exercise prosecutorial discretion,” as well as his Deferred Action for Childhood Arrivals executive order, would free up the agency to tackle Trump’s goals. The extent to which Trump’s plans will differ from Obama’s policies will depend on his timeframe for the removals and the resources he is able to obtain for those efforts. Obama has also emphasized deporting criminals, and at its peak the administration was removing more than 400,000 immigrants each year. The president has deported more immigrants than any in history.
“The criminal alien population was always a focus,” said David Aguilar, a Border Patrol chief under Bush and Obama. “It is the definition of criminality that has changed over the years.” Aguilar said he expects the Trump administration to do more of “what has been done,” but with a renewed focus on “certain types of criminal activity.”
While Trump has promised to remove the criminal immigrant population immediately upon taking office, he will quickly run into roadblocks. Immigration courts already face a backlog in excess of 500,000 cases. Trump has vowed to triple the size of ICE, but even if Congress were to appropriate the funding to fulfill that request, it would only solve one small piece of the problem.
“Agents are only one part of the system,” said Sandweg, who now runs Frontier Solutions. “You can’t just ramp up the number of agents without ramping up judges, U.S. attorneys,” and other areas. First, he said, Trump will “need to balance the current system.”
Other concerns, Torres said, include ensuring appropriate detention space, beds and “having the capacity to hire that many people so quickly.” ICE would need to make timely purchases of laptops, equipment and vehicles, he said, as well as adding office space and creating more space at the Federal Law Enforcement Training Center by bringing on more instructors.
“There is a full spectrum impact,” Torres said.
Aguilar, who served as Border Patrol chief when the agency doubled in size under a 2004 law, said it took his agency 247 days on average from the time of application through the background check and training procedures until a new employee was fully onboarded. It took an additional three to three-and-a-half years, he said, for the agency to feel fully confident a new employee had gone through the maturation process.
A DHS inspector general’s report released this month found the department’s components face “significant delays” in hiring despite a 2014 funding infusion to boost the workforces of ICE, the Border Patrol and the Secret Service. All of DHS has undergone cuts in human resources funding and money for new applicant-tracking software, the auditors said.
“It’s a hell of a challenge,” said Jay Ahern, who spent 33 years in federal service, including as assistant commissioner for field operations for Customs and Border Protection as well as the agency’s acting director. “When you do massive hires you’re going to make some mistakes. Some people will not be of the quality you want.”
ICE and the Border Patrol are hardly the only agencies that will need an influx of resources to keep pace with Trump’s plans; the Justice Department’s Executive Office for Immigration Review will need a boost to adjudicate cases, as will the Health and Human Services Department’s Office of Refugee Resettlement. DHS’ detention systems will need more contract guards to manage a larger population.
“It’s a delicate system,” Ahern said. “It can quickly saturate your capacity for detention.”
Trump has not shied away from his pledge to build a wall along the U.S.-Mexico border, though he now concedes he would accept fencing in some areas. Former agency heads and even the Border Patrol union that endorsed Trump agreed it would be a mistake for the president-elect to focus on that proposal. The more than 650 miles of fencing already installed has targeted the areas where physical barriers are most effective, they said, and the administration would be better served devoting resources to mobile and technology-based infrastructure.
Trump’s deportation plans will eat away at ICE and BP’s transportation budget, where the coffers will also need to be refilled. Ahern, a principal at The Chertoff Group, said it can take hours to get to some remote locations along the border, and Trump will want to construct “tactical roads” to deliver on his promise of complete border security.
Torres noted Trump could find a workaround to expedite his administration’s deportations, while perhaps also lowering costs. Stipulated removals, reinstatements of removal and expedited removals all allow the federal government to deport individuals in certain circumstances without the usual hearing, trial and appeal. Trump has not said whether he would seek to address more cases with those exceptions or ease their usage through legislation. Torres said he expects Trump could increase deportations, using all the available tools to him and with increased funding from Congress, to 800,000 annually -- nearly double the record highs seen in the Obama administration.
If the Trump administration becomes infatuated simply by volume, Sandweg said, rather than the “quality of results,” it would probably bring back mass raids. Another tool Trump could use is through a program known as 287(g), which enables the federal government to deputize state and local law enforcement agencies to identify, process and detain violators of immigration law. Several cities have already announced they would not assist Trump in those efforts.
“Unless he plans to build a new type of police force, he would need to pull from those that already exist,” Gitis said.
While the president-elect must still sort out many of the details, and work with what appears to be a friendly Congress to fund his priorities, many law enforcement officers on the ground are already celebrating.
“I think there is definitely a sense of excitement,” said Shawn Moran, vice president of the National Border Patrol Council, which endorsed Trump earlier this year, adding after the election “there was a lot of high-fiving, hugging, back-slapping.”
He added: “It’s an entirely new workplace.”