President-elect Donald Trump recently remarked during a “60 Minutes” interview aired this past Sunday that he plans on immediately deporting two to three million undocumented immigrants who have criminal records. Some have characterized this stance as a step back from the more shrill rhetoric of his campaign stumps, in which he previously declared that he would deport close to eleven million illegal aliens. If anything, President-elect Trump certainly has a flair for the provocative and a keen ability to stir up and galvanize the population on certain issues. How and whether he truly intends to carry out this plan, however, remains to be seen. Some posit that this position, like his other stances, is merely another “gambit” by a master negotiator stuck between appeasing the reactionary electorate who supported him and governing in an ecumenical manner. Regardless, the prospect of targeting and immediately removing this smaller tranche of the illegal population raises many concerns. Financially speaking, the costs of deporting these many people would exert an enormous strain on our economy. Some studies indicate that it costs the government a staggering $10,000 to deport one person. Secondly, aside from the costs, our court systems are already seriously overburdened and backlogged with cases scheduled far out in advance. According to the Associated Press back in July of 2016, the Executive Office of Immigration Review (“EOIR”)-which is the arm that runs the immigration courts-indicated that there were more than 500,000 cases pending in the courts. How 2-3 million more court cases will be accelerated is beyond baffling.
Speaking of courts, there are certainly due process implications as well. Even if someone is here illegally, he or she has a right to a court hearing under most circumstances (getting caught at or within 100 miles of the border, among some of the exceptions). The Constitution, Immigration, and Nationality Act, and case law and regulations all mandate that aliens be entitled to full and fair hearing. Even undocumented aliens who have criminal records (and who presumably fall within the ambit of President-elect Trump’s plans) still get their day in immigration court. Depending on the nature of their criminal records, Immigration and Customs Enforcement may seek to charge them as being deportable under section 237 of the Immigration and Nationality Act. But the point is that individual would nevertheless have an opportunity to contest the finding and if eligible, apply for immigration relief. It is possible and conceivable that President-elect Trump may be envisioning those who have been convicted of Aggravated Felonies when he speaks loosely of the two to three million criminal aliens. However, that number itself is arguably flawed, as many have pointed out, as some of that number may include permanent residents as well as those who are here on temporary non-immigrant visas. Additionally, it is not clear who is considered “criminal.” Are those with misdemeanors and petty offenses, such as theft and shoplifting, included in this group? Moreover, even non-permanent residents who have been convicted of the aforementioned aggravated felonies are afforded some measure of due process. This class of people may not necessarily be able to see a judge under the Administrative Removal procedure, but they are nevertheless entitled to challenge the government’s determination.
That being said, even if the prospect of mass deportations seems unrealistic and unworkable, there are real people at risk. Even under the Obama Administration, those with criminal records are high priorities for apprehension and removal, so President-elect Trump is not necessarily pronouncing something new. Those with criminal records may definitely want to consult with qualified attorneys to investigate and evaluate their exposure.