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Jason Dzubow on Political Asylum

President Trump’s 101-Year Deportation Plan

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Joseph Stalin and Mao Zedong had their five-year plans. Nikita Khrushchev had his seven-year plan. And now President Trump has a 101-year plan. That’s how long it will take to deport the country’s 11 million undocumented residents if current trends continue.

Happy Birthday! Now, get the hell out of my country!

The most recent statistics on case completions in Immigration Court show that the Trump Administration has issued an average of 8,996 removal (deportation) orders per month between February and June 2017 (and 11,000,000 divided by 8,996 cases/month = 1,222.8 months, or 101.9 years). That's up from 6,913 during the same period last year, but still well-below the peak period during the early days of the Obama Administration, when courts were issuing 13,500 removal orders each month.

Of course, the Trump Administration has indicated that it wants to ramp up deportations, and to that end, the Executive Office for Immigration Review or EOIR--the office that oversees the nation's Immigration Courts--plans to hire more Immigration Judges ("IJs"). Indeed, Jefferson Beauregard Sessions, the Attorney General (at least for now) announced that EOIR would hire 50 more judges this year and 75 next year.
Assuming EOIR can find 125 new IJs, and also assuming that no currently-serving judges retire (a big assumption given that something like 50% of our country's IJs are eligible to retire), then EOIR will go from 250 IJs to 375. So instead of 101 years to deport the nation's 11 million undocumented residents, it will only take 68 years (assuming that no new people enter the U.S. illegally or overstay their visas, and assuming my math is correct--more big assumptions).

But frankly, I'm doubtful that 68 years--or even 101 years--is realistic. It's partly that more people are entering the population of "illegals" all the time, and so even as the government chips away at the 11,000,000 figure, more people are joining that club, so to speak. Worse, from the federal government's point of view, there is not enough of a national consensus to deport so many people, and there is significant legal resistance to Mr. Trump's immigration agenda.

In addition to all this, there is the Trump Administration's modus operandi, which is best characterized as malevolence tempered by incompetence. One statistic buried in the recent deportation numbers illustrates this point. In March 2017, judges issued 10,110 removal orders. A few months later, in June, judges issued 8,919 removal orders.

This means that the number of deportation orders dropped by 1,191 or about 11.8%. How can this be? In a word: Incompetence (I suppose if I wanted to be more generous—which I don’t—I could say, Inexperience). The Trump Administration has no idea how to run the government and their failure in the immigration realm is but one example.

There are at least a couple ways the Administration’s incompetence has manifested itself at EOIR.

One is in the distribution of judges. It makes sense to send IJs where they are needed. But that’s not exactly what is happening. Maybe it’s just opening night jitters for the new leadership at EOIR. Maybe they’ll find their feet and get organized. But so far, it seems EOIR is sending judges to the border, where they are underutilized. While this may have the appearance of action (which may be good enough for this Administration), the effect—as revealed in the statistical data—is that fewer people are actually being deported.

As I wrote previously, the new Acting Director of EOIR has essentially no management experience, and it’s still unclear whether he is receiving the support he needs, or whether his leadership team has the institutional memory to navigate the EOIR bureaucracy. Perhaps this is part of the reason for the inefficient use of judicial resources.

Another reason may be that shifting judges around is not as easy as moving pieces on a chess board. The IJs have families, homes, and ties to their communities. Not to mention a union to protect them (or try to protect them) from management. And it doesn’t help that many Immigration Courts are located in places that you wouldn’t really want to live, if you had a choice. So getting judges to where you need them, and keeping them there for long enough to make a difference, is not so easy.

A second way the Trump Administration has sabotaged itself is related to prosecutorial discretion or PD. In the pre-Trump era, DHS attorneys (the “prosecutors” in Immigration Court) had discretion to administratively close cases that were not a priority. This allowed DHS to focus on people who they wanted to deport: Criminals, human rights abusers, people perceived as a threat to national security. In other words, “Bad Hombres.” Now, PD is essentially gone. By the end of the Obama Administration, 2,400 cases per month were being closed through PD. Since President Trump came to office, the average is less than 100 PD cases per month. The result was predictable: DHS can’t prioritize cases and IJs are having a harder time managing their dockets. In essence, if everyone is a deportation priority, no one is a deportation priority.

Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement.

Another “fix” is to prevent people from coming here in the first place. Build the wall. Deny visas to people overseas. Scare potential immigrants so they stay away. Illegally turn away asylum seekers at the border. Certainly, all this will reduce the number of people coming to America. But the cost will be high. Foreign tourists, students, and business people add many billions to our economy. Foreign scholars, scientists, artists, and other immigrants contribute to our country’s strength. Whether the U.S. is willing to forfeit the benefits of the global economy in order to restrict some people from coming or staying here unlawfully, I do not know. But the forces driving migration are powerful, and so I have real doubts that Mr. Trump’s efforts will have more than a marginal impact, especially over the long run. And even if he could stop the flow entirely, it still leaves 11 million people who are already here.

There is an obvious alternative to Mr. Trump’s plan. Instead of wasting billions of dollars, harming our economy, and ripping millions of families apart, why not move towards a broad legalization for those who are here? Focus on deporting criminals and other “bad hombres,” and leave hard-working immigrants in peace. Sadly, this is not the path we are on. And so, sometime in 2118, perhaps our country will finally say adieu to its last undocumented resident.

Originally posted on the Asylumist:

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  1. ImmigrationLawBlogs's Avatar
    Jason Says, "Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement."

    How easy do you think it is going to be for aliens in expedited removal proceedings to persuade an ICE enforcement officer that they have been in the US for more than two years? They are in mandatory detention and are not allowed to have legal representation. How do you think they are going to gather the documentary evidence they will need? They won't be able to produce witnesses. There won't be a hearing for testimony of any kind. And they are going to be held at large detention centers that will be spread across the country. They may not even be entitled to notify friends or relatives that they are being detained, let alone telling them where they are being detained. And they may not be allowed any visitors even if friends or relatives manage to locate them.

    As for legal challenges, the Immigration and Nationality Act (INA) limits expedited removal proceeding legal challenges to cases in which the alien can establish lawful status, e.g., that he is a citizen or an LPR. The only way to stop challenge the proceedings themselves would be to challenge the constitutionality of the expedited removal proceedings provisions in the INA, and that will be much more difficult than using character assassinations based on campaign statements to establish that an executive order Trump issues is based on religious discrimination.

    The reason for this is that IRRIRA, the Act that established the proceedings, also established a statutory definition for entry, i.e., lawful admission. This means that undocumented aliens in expedited removal proceedings have not entered the US. They wouldn't be undocumented if they had made a lawful entry. And the Supreme Court has defined due process for aliens who have not entered the US yet to be whatever Congress chooses to give them, which in this case is expedited removal proceedings.

    I predict that Trump will give the bum's rush to millions of undocumented aliens during his presidency, and millions more if he gets a second term or another enforcement minded republican follows him.

    And, this will fix the backlog crisis in the immigration courts. Trump will have the aliens in removal proceedings shifted to expedited proceedings and the backlog crisis will disappear.

    Nolan Rappaport

    Updated 07-27-2017 at 10:05 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Nolan refers to the use (by the 4th Circuit and other federal courts) of Trump's campaign statements showing obvious and open hostility toward Muslims because of their religion as "character assassination". How could quoting the president's own exact words be construed as "character assassination" (unless Nolan means to say the the president is "assassinating" his own character)?

    One could also mention, as Nolan does not, that it is not only Trump's pre-election statements which any reasonable person (or judge) would conclude show intense animosity to all Muslims, not just those who support terrorist groups, but also his actions as president in appointing openly Islamophbic advisers such as Michael Flynn, Steve Bannon and Steve Miller, among many other similar actions one could mention.

    Closing one's eyes to the obvious reality of Trump's animosity toward Muslims in general, and his evident belief that their religion itself is a danger to the United States, or at least is inconsistent with US values and ideals (an only slightly less obvious form of religious bigotry - many Americans used to say the same thing about Jews and Catholics, and a few still do), with all of these negative implications for the constitutional rights of millions of Muslim US citizens to the free exercise of religion, is not the way to preserve an independent court system - or a democracy.

    Roger Algase
    Attorney at Law

    Updated 07-28-2017 at 08:43 AM by ImmigrationLawBlogs
  3. JDzubow's Avatar
    I am not as pessimistic as Nolan about this - I do not think Trump will be able to push millions of cases into expedited removal. I do think many aliens will be able to show that they have been in the US more than 90 days, and so I doubt expedited removal will make a big dent in the undocumented population. Take care, Jason
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