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President Elect Donald Trump will not be able to deport millions of people. By Nolan Rappaport

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11/10/2016 11:28 pm ET
SAÚL MARTÍNEZ/NEWSCOM

Pew Research Center (PEW) claims that the United States has 11 million undocumented aliens, but my examination of PEW’s methodology has persuaded me that its estimates of the undocumented population are unreliable. I believe that the actually number is much larger. In any case, I am sure it is at least that large.

Will President Elect Donald Trump be able to deport 11 million undocumented aliens?

Every alien accused of being deportable has a statutory right to a hearing before an immigration judge. The immigration courts always have had big backlogs, and the backlogs have continued to grow. The immigration court completed 181,575 cases in FY 2015, which is impressive for a court that only has 273 judges. Nevertheless, the number of cases awaiting resolution before immigration judges as of the end of October 2016, was 521,676. To put this in perspective, this was an average of 1,910 cases for each of the 273 immigration judges. The average wait time for a hearing as of the end of October was 675 days, which is a couple of months short of two years.



If we add 11 million cases to the immigration court backlog, the new count would be 11,521,676. Even if no additional aliens enter the United States unlawfully, the average for each of the 273 immigration judges would increase to 42,204 cases, and the average wait time would increase to 14,915 days, which would be approximately 41 years. The number of immigration judges could be increased, but the increase would be limited by the availability of lawyers who are qualified to become immigration judges and willing to do so. Let’s suppose that the immigration court is tripled in size to 819 judges. The average wait time for a hearing would be reduced to 4,972 days, which would be approximately 13.6 years, still much too long.

Right to Appeal a Deportation Order

Aliens who have been found deportable by an immigration judge can delay the finality of their deportation orders by appealing to the Board of Immigration Appeals, and they cannot be deported while their appeals are pending. The Board, however, is not a statutory body. It was created by federal regulations, which specify its jurisdiction and powers, and the president can promulgate new regulations to eliminate the Board. But the Board is needed to reverse the mistakes that immigration judges make and to maintain consistency in the way the law is interpreted and applied. The Board received 284,667 cases in FY 2015 and completed 262,293, which is an impressive number for a Board that only has 17 members. Nevertheless, this left a pending case load of 16,945 cases. The Board’s work could be done more efficiently by replacing it with an immigration court made up of federal judges with limited jurisdiction, but that would just reduce the delay from appeals, not eliminate it, and it would take a while to establish and staff such a court.

President Elect Donald Trump has two alternatives.

When the impossibility of deporting 11 million undocumented aliens becomes apparent to President Elect Trump, he can press ahead anyway and fail miserably. Or, he can persuade the republican controlled congress to establish a legalization program that would reduce that number to a manageable level and foster better relations between the republicans and the immigrant community. This is the IRCA wipe-the-slate-clean and-start-over deal which was the basis for the last comprehensive immigration reform bill. The legalization program’s eligibility requirements could be drafted to exclude aliens who do not believe in our Constitution, who support bigotry and hatred, or who are undesirable in any other way he wants to specify; and make legalization available to qualified undocumented aliens who would be expected to flourish in our country and to embrace a tolerant American society. And extreme vetting could be required. Which alternative do you think he will choose?

Start the legalization program with DACA participants.

My suggestion is to start the program with children in the Deferred Action for Childhood Arrivals (DACA) Program. In addition to the availability of information about them in our public school system and elsewhere in the United States, they are the most sympathetic group. They are completely innocent of any wrongdoing. They did not choose to come here in violation of our laws. They were brought here by their parents. They would be the most Americanized of all of the groups of undocumented aliens. And, a bill for such a legalization program already exists that could be modified to satisfy President Elect Trump’s eligibility criterion, the Dream Act, which has had broad bipartisan support.



Published initially on Huffington Post.
http://www.huffingtonpost.com/entry/...74901#comments

_______________________________________________________________________________


About the Author
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for twenty years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson



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Updated 11-13-2016 at 09:46 PM by ImmigrationLawBlogs

Comments

  1. ImmigrationLawBlogs's Avatar
    This comment to Mr. Rappaport's article is updated as of the morning of November 30.

    On the basis of reality, Trump may not in fact be able to deport 11 or 12 million unauthorized immigrants, or even 3 million unauthorized immigrants who he claims are "criminal aliens" (despite the fact that a Migration Policy Institute reports finds that less than a million unauthorized immigrants have been convicted of any crime whatsoever - link to be provided), but reality has never been a big feature of Trump's campaign statements on immigration, or on related issues.

    How much reality is there to Trump's November 27 claim that he "won" the popular vote, except for 3 million "illegal" voters who he claims voted against him? Does this refer to 3 million "illegal aliens", a class of people whom he claimed during the campaign would be pouring across the border to vote against him?

    This utterly delusional comment, backed up by not a shred of evidence, is not the kind of statement that someone who is looking a realistic solution on any issue typically makes. It is also not the kind of statement that someone who believes in free elections, the foundation of our democracy, normally makes either.

    Even Newt Gingrich, who has been a close Trump ally and supporter throughout, has now spoken out critically about Trump's statement, which is based on pure fantasy, not reality.

    But even the above statement, with all of the ominous signals it sends about whether there will continue to be free elections in Donald Trump's America, pales before Trump's threat to revoke the American citizenship of flag burners, made in another tweet on November 29.

    Flag-burning, while unquestionably offensive to all Americans where revere the flag as a symbol of our values and our freedom, has been held by two landmark Supreme Court decisions, Texas v. Johnson (1989) and US v. Eichman (1990) to be constitutionally protected free speech precisely because it is offensive.

    That is the essence of what the first amendment is about, according to the two decisions, in which even the late Justice Scalia, of whom Trump has spoken so highly, joined with the majority.

    Where in the law or in our constitution is there the slightest grounds for taking away the citizenship of a native-born American for legally expressing a constitutionally protected political opinion, no matter how offensive his/her way of expressing it may be? There are only three statutes in the US Code providing for involuntary loss of citizenship by a native-born America, and these three are limited to insurrection, sedition and advocacy of overthrow of the government.

    Has America now elected a president who believes that any speech or opinion he doesn't like is "seditious" and therefore grounds for revoking someone's American citizenship?

    And would Attorney-General designate Jeff Sessions, who, given his history, one can be sure will use the full power of the his office to create a climate of fear and terror in immigrant communities across America and among Americans who support immigrants (under INA Section 274 in particular) go along with this attempt to throw out the constitution and substitute Donald Trump as supreme arbiter of which Americans should be allowed to keep their precious citizenship right?

    Could this be called democracy? The question of exactly how many millions of immigrants Trump may try, along with the anti-immigrant zealots he relies on such as Jeff Sessions and Kris Kobach, to tear away from their families (many of which include American citizen spouses and children), round up, lock up in concentration camp style private prisons and throw out of the country - or how many millions of other immigrants Trump will slam the doors to America against because they are not white, Judeo-Christians of European origin, is not even the main issue any longer.

    The main issue is whether America will survive as a democracy under President Donald Trump.

    Roger Algase
    Attorney at Law

    My original comment appears below.

    This article by Nolan Rappaport, a distinguished and highly respected immigration law scholar and authority, is convincing, well argued, and backed up by powerful mathematical (arithmetical) evidence showing that as president, Donald Trump cannot possibly deport 11 or 12 million unauthorized immigrants, but that, inevitably, he will be driven to institute a "very large" legalization program.

    I have only one insignificant quibble with Nolan's conclusion. It is totally at odds with what Donald Trump has actually promised to do. Here are Trump's exact quoted words:

    "Under my administration, anyone who illegally crosses the border will be detained until they are removed out of our country and back to the country from which they came...And you can call it deported if you want. The press doesn't like that term. You can call it whatever the hell you want. They're gone... Anyone who has entered the United States illegally is subject to deportation. That is what it means to have laws and to have a country. Otherwise we don't have a country."

    See, American Renaissance:

    On Immigration: Who Said It, Trump or White Supremacist Madison Grant?


    http://www.amren.com/news/2016/09/on...madison-grant/

    As I read the above quote, and I have read it through very carefully to make sure that I am not missing anything, I am not able to find anything that would indicate Trump's willingness or agreement to institute a legalization program.

    Roger Algase
    Attorney at Law
    Updated 11-30-2016 at 07:42 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    This article by Nolan Rappaport, a distinguished and highly respected immigration law scholar and authority, is convincing, well argued, and backed up by powerful mathematical (arithmetical) evidence showing that as president, Donald Trump cannot possibly deport 11 or 12 million unauthorized immigrants, but that, inevitably, he will be driven to institute a "very large" legalization program.

    I have only one insignificant quibble with Nolan's conclusion. It is totally at odds with what Donald Trump has actually promised to do. Here are Trump's exact quoted words:

    "Under my administration, anyone who illegally crosses the border will be detained until they are removed out of our country and back to the country from which they came...And you can call it deported if you want. The press doesn't like that term. You can call it whatever the hell you want. They're gone... Anyone who has entered the United States illegally is subject to deportation. That is what it means to have laws and to have a country. Otherwise we don't have a country."

    See, American Renaissance:

    On Immigration: Who Said It, Trump or White Supremacist Madison Grant?


    http://www.amren.com/news/2016/09/on...madison-grant/

    As I read the above quote, and I have read it through very carefully to make sure that I am not missing anything, I am not able to find anything that would indicate Trump's willingness or agreement to institute a legalization program.

    Roger Algase
    Attorney at Law
    I agree that he wants to deport all of the undocumented aliens and that he has promised that he will do it. The point of my article is that it can't be done. It is impossible.

    Trump doesn't like failure. He thinks people who fail are losers. When he realizes that his plan to deport all of them can't succeed, he will abandon it. The most likely alternative is a legalization program to reduce the number to a manageable level by taking out innocuous aliens who are not a threat of any kind. Then he will be able to concentrate on removing the people most of us agree should be removed.

    Nolan Rappaport
  3. ImmigrationLawBlogs's Avatar
    Nolan seems to be assuming that Trump would react to the reality of deportation options in a rational way, and not in a way which would satisfy his far right immigration advisers such as Alabama Senator Jeff Sessions and Kansas Secretary of State Kris Kobach, as well as alt-right "white nationalists" such as David Duke of the KKK and some others whose support in this campaign may well have helped Trump get elected, even though Trump eventually disavowed these groups and their leaders.

    Based on late breaking news reports that Trump is relying mainly on seasoned Republican insiders for policy advice during his transition, and that V.P. - Elect Mike Pence, who certainly came over as a reasonable, more moderate figure during the campaign compared to Trump, has taken over the transition team and may have considerable influence in the Trump administration, Nolan might be right that Trump will not adopt the extreme line on immigration policy that he often seemed to be doing during the campaign.

    Let us hope so. If Nolan is right, he will not have to read my criticisms of Trump's immigration ideas in the future as frequently as these are appearing now.

    Roger Algase
    Attorney at Law


    Updated 11-11-2016 at 03:47 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Nolan seems to be assuming that Trump would react to the reality of deportation options in a rational way, and not in a way which would satisfy his far right immigration advisers such as Alabama Senator Jeff Sessions and Kansas Secretary of State Kris Kobach, as well as alt-right "white nationalists" such as David Duke of the KKK and some others whose support in this campaign may well have helped Trump get elected, even though Trump eventually disavowed these groups and their leaders.

    Based on late breaking news reports that Trump is relying mainly on seasoned Republican insiders for policy advice during his transition, and that V.P. - Elect Mike Pence, who certainly came over as a reasonable, more moderate figure during the campaign compared to Trump, has taken over the transition team and may have considerable influence in the Trump administration, Nolan might be right that Trump will not adopt the extreme line on immigration policy that he often seemed to be doing during the campaign.

    Let us hope so. If Nolan is right, he will not have to read my criticisms of Trump's immigration ideas in the future as frequently as these are appearing now.

    Roger Algase
    Attorney at Law


    Trump walked away from Republican leadership during the campaign when he very badly needed their support. The man marches to the beat of his own drummer. If he decides that he will fail if he tries to deport 11 million aliens, he will do something else. He thinks people who fail are losers.

    I can't believe that you are going to let up on your Trump tirades no matter what he does, but it would be a nice change.

    Nolan Rappaport
  5. ImmigrationLawBlogs's Avatar
    Note. I posted this previously under a different title. Trump's announcement that he will deport millions of people right away warranted a new title to draw attention to the fact that the article explains why such mass deportations are not possible.

    Nolan Rappaport
  6. ImmigrationLawBlogs's Avatar
    Donald Trump has already announced that he is planning to deport or incarcerate up to 3 million "criminal aliens" as soon as he takes office. Seems that he hasn't read Nolan Rappaport's article yet. One hopes that the new president will get around to doing that as soon as possible.

    Yes, Nolan is correct when he says that illegal and criminal immigrants have a variety of constitutional and statutory due process rights that would make mass deportation unrealistic, to say the least.

    Anyone who has been listening to what Trump has been saying about constitutional rights during his campaign in general, not only those of immigrants, would have to ask how much respect he is interested in showing for those constitutional rights, including the right to free speech, the right to freedom of religion, the right to due process of law, the right to counsel and the right to protection against torture, not to mention the guarantee of birthright citizenship for all US-born children, which Trump has pledged to abolish.

    I have recently commented on an ACLU report discussing this issue in detail, and it is worth reading for anyone who thinks that the constitution will necessarily hold Trump back from doing whatever he wants in the area of immigration, and in the area of civil liberties of Americans as well. I will provide a cite or link to this report as soon as possible, It is a fully researched and exhaustive one, and is well worth the attention of readers who are seriously interested in the question of what will happen to constitutional guarantees for both immigrants and Americans in the Trump administration.

    It is also an unfortunate truth that Trump has shown a certain tendency to make up his own reality on immigration facts. I will not go into the very long list, because whenever I refer to one of Trump's own statements, Nolan calls my reference a "tirade".

    So I will mention just one example: Trump said during the campaign that the Obama administration had allowed Syrian refugees to "pour into" the US without any screening whatsoever and that many of them were definitely ISIS supporters.

    No one can show that there is a single iota of truth in any of the above highly inflammatory statements.

    In the same way, Trump is now promising to deport 3 million illegal criminal "aliens". Are there in fact 3 million unauthorized immigrants with criminal records in the United States?

    If Nolan has figures to support Trump's claim, this would be a good time to produce them.

    It is certainly true that Trump is already backing away from his campaign promise to build a wall with Mexico. We are now hearing that parts of the wall may just be a fence, or may just a virtual barrier of the kind we have now. It is not all impossible that he may back away from other immigration promises as well. But right now, it is too early to tell.

    There is one statement that many people are making about Trump that no one can argue with - he is totally unpredictable. Maybe he will come around to reality on deportation policy, as Nolan predicts.

    But given the degree to which Trump's statements on immigration so far have been driven by anti-immigrant hate, and unless one can assume that Trump has utter disregard and contempt for the millions of anti-immigrant, including alt-right, voters who gave him almost as many votes during the election as his opponent, Hillary Clinton received - she only beat Trump by 2 million votes - it is just a little bit too early to assume that Trump will abandon the plans that he has just announced to engage in mass deportation of up to 3 million people.

    I would suggest that Nolan's rosy prediction should be taken with the greatest respect for his distinguished record of immigration law scholarship - and also with more than a few grains of salt.

    Roger Algase
    Attorney at Law
    Updated 11-15-2016 at 04:57 AM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    The fact that Trump has just appointed extreme right wing figure such as Breitbart News editor Steve Bannon as his chief strategist and adviser, and that other people who also have strong anti-immigrant and anti-minority records such as Rudy Giuliani and Sen. Jeff Sessions are reportedly being considered for high positions in the administration is not exactly reassuring either, concerning policy toward non-white immigrants, i.e. most of America's legal and illegal immigrants.

    If Giuliani becomes Secretary of State, as rumored, how many immigrants of color are going to get visas of any variety? What will Trump's "extreme vetting" of immigrants involve? Will the form DS-160 visa application look something like this?

    "1) State your name.
    2) State your date and place of birth.
    3) State your country of citizenship.
    4) Are you white? (check yes or no).
    5) If you checked no to question 4, do not continue with this application. If you checked yes, go to question 6.
    6) Do you swear loyalty to the President of the United States, Donald J. Trump, and that you will at all times agree with and follow his statements and policies on every issue, without expressing any disagreement in public or private with any of his pronouncements or decrees, during the entire length of your stay in the United States? (Check yes or no.)
    7 If you checked no to Item 6, above, do not proceed with this application."

    And for an idea of the extreme danger that our immigration system, and our democracy, could well face from having someone like Stephen Bannon in the White House as Trump's senior advisor, see, The Hill, November 15:

    http://www.thehill.com/homenews/news...-wh-strategist

    Could we be on the way to becoming an Apartheid America?

    Roger Algase
    Attorney at Law
    Updated 11-15-2016 at 12:13 PM by ImmigrationLawBlogs
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