Tuesday, September 6, 2016
The Missing Piece of the Puzzle that is Donald Trump's “Deportation Force” Plan
The U.S. Supreme Court has long recognized that deportation is a “particularly severe penalty” for many immigrants. See Padilla v. Kentucky (2010). In fact it may be an even more severe penalty than a criminal sentence. It can lead to permanent banishment from the United States, have devastating effects on one's family and friends, and may result in persecution or death in certain cases.
Donald Trump's "deportation force" plan is not just inhumane and unworkable, but more importantly it is incoherent for a variety of reasons.
The basic assumption is that the 11 or so million people who are undocumented can be removed “immediately” from the U.S. once they have been identified. But this is not how it works. Before most people are physically deported they must be given procedural safeguards in the form of "removal proceedings." The Executive Office for Immigration Review, known colloquially as the immigration court is in charge of these proceedings. This is required under Fifth Amendment due process and the Immigration and Nationality Act. In some cases, for example for non-lawful permanent residents who are deemed to be aggravated felons, a very limited number of people, the procedure is more truncated and those individuals can be removed without an immigration court hearing, but merely upon being notified of an administrative removal order issued by the Department of Homeland Security. In addition there is a procedure known as expedited removal which occurs at the border or port of entry and allows Customs and Border Protection officers to make a removal order without a judicial proceeding in circumstances where persons are found to have committed fraud or attempted entry without valid documents.
Donald Trump is not talking about expedited removal but rounding up those already in the country and presumably who have overstayed their lawful status or who have entered without inspection. In limited circumstances, for example concerning non-LPR aggravated felons as stated above those individuals may be removed without a judge's order. But the vast majority of 11 million are not aggravated felons, and therefore could not be deported immediately but under the Immigration and Nationality Act and the U.S. Constitution are entitled to see a judge before being ordered removed.
An even greater flaw in the deportation force plan is that it ignores that of these 11 million many, if not the majority, are able to seek and be granted some form of relief from deportation.
What Trump's camp apparently does not know is that immigrants who are undocumented can seek relief, in the form of cancellation of removal, asylum, withholding of removal, Convention Against Torture, adjustment of status, etc. in appropriate circumstances. For statistics on forms of relief and immigration courts see the latest Statistical Year Book of EOIR, Fiscal Year 2015.
There are other forms of relief which certain people may apply for who are not even in proceedings before an immigration court, such as Temporary Protected Status, DACA 2012, asylum, or adjustment of status in certain cases. These are called affirmative applications for relief, as opposed to the defensive forms of relief available to respondents in removal proceedings.
That this is the way it works is not part of the platform nor even the debate. Instead, Trump and his people are making assumptions without the facts and in the absence of any knowledge of the procedures or substance of the laws which apply. In fact, there are some among those 11 million who have claims to U.S. citizenship due to some event that happened, for example a mother or father naturalizing. Some people who are in removal proceedings can and do make successful claims to citizenship. There are even those who have derived citizenship from a U.S. citizen mother or father or in some cases grandparent, who never know they were citizens until they were brought before an immigration judge.
Donald Trump may bluster all he wants about deporting 11 million, but he cannot ignore the procedures and substantive forms of relief which exist under our immigration laws. To confront the real problems facing our broken immigration system, Trump could be talking about comprehensive immigration reform and the 500,000 plus immigration court backlog, the detention bed quota which pours profits into private prison companies. If he were serious about immigration enforcement, his “plan” would have to address the detention problem and other injustices such as “family detention” and conditions inside detention centers and holding cells at the border.
There is a fundamental flaw at the root of the puzzle that is Trump’s "immigration plan." It ignores the Immigration and Nationality Act, due process, and the rule of law. As the Supreme Court said in Reno v. Flores, “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” If Trump understood the issues, then he would be very aware that his plan far from enforcing the laws actually flouts them.
Geoffrey A. Hoffman is a professor at the University of Houston Law Center and director of the Immigration Clinic. Institution for identification only. The views expressed are the author’s own in his personal capacity.