Blog

by Ava Benach

Understanding Trump’s Mass Deportation Plan

One of Trump’s signature immigration policy ideas is “mass deportation”.

The term “mass deportation” has been used a lot but there is little consensus about what it means. The incoming Trump aides that have discussed mass deportation have discussed some of the following:

• Using a law from the 1700s called the Alien Enemies Act to round up citizens of countries deemed to have “invaded” the US
• Expanded expedited removal to allow DHS to deport anyone who cannot show that they have been in the US for at least two years

Beyond these truly radical ideas and absent Congressional action, the administration will have to seek deportation through the normal channels—placing an individual into deportation proceedings before the immigration judge in the immigration court. And that system is a mess.

Overloaded Immigration Courts: A System in Crisis

There are currently over 3.7 million cases pending before the immigration court. Placing more immigrants into that system is likely to further slow down the court’s progress in entering deportation orders against undocumented immigrants caught in Trump’s net.

How Deportation Works in the U.S. Now

Generally, in order to deport someone from the United States, an order of deportation must be entered by an immigration judge. An order of deportation is one possible conclusion of deportation proceedings. DHS institutes deportation proceedings against someone by issuing a document called a Notice to Appear. This document explains the reasons why DHS is trying to deport a person (entered without inspection, overstayed a visa, convicted of certain crimes) and when and where the immigrant must appear in court. The immigrant may be represented by counsel in an immigration hearing and the first hearing is generally preliminary—confirming the identity and address of the immigrant and setting a plan for the scheduling the remainder of the hearing.

Removal proceedings often have two distinct parts. The first part requires the government to prove that the immigrant is in the country without permission and is, therefore, deportable from the US. The second part is where the immigrant gets the opportunity to apply for relief from removal. That is, the immigrant gets to file, if eligible, applications for asylum, cancellation of removal, adjustment of status, which, if granted, will allow the immigrant to remain in the U.S. lawfully. If the immigrant is not eligible for any form of relief or if the immigration judge denies relief, the immigration judge can order deportation.

Most undocumented immigrants in the US will need to be placed into removal proceedings in order to deport them lawfully from the US. Given the current backlog and the likelihood that many thousands of additional cases will be added, it is hard to see how the new administration can accomplish a lot of its goals relying upon the immigration court system as currently constituted.

The Target: People with Outstanding Removal Orders

For this reason, it is entirely predictable that the new administration will focus their efforts on identifying people with outstanding orders of removal but who have not been deported or otherwise left the U.S. There are many people who have been ordered deported by an immigration judge or, in some circumstances, ICE, and have not had those orders executed. These people are the “low-hanging fruit” of mass deportation. Once these individuals are identified, located and arrested, no further process is required to deport them. ICE can deport them without placing them in front of a judge. The order remains unexecuted, and ICE is empowered to execute it. Thus, it is much easier and faster to remove immigrants who already have orders of deportation than it is to obtain removal orders for undocumented individuals.

If You Have a Removal Order, Here’s What You Need to Know

So, what if you have a removal order? Is it hopeless? Not necessarily. Removal orders can be reopened for a variety of reasons, including the availability of new relief, a change in circumstances, law or policy, or in the sole judgement of the immigration judge. While there are ordinarily strict limits on the timing of motions to reopen, there are also statutory, regulatory, and constitutional exceptions. If you have an outstanding order of removal, you should consult immediately with an immigration lawyer to see if you have a basis to reopen it and seek relief from removal.

Immigrants with Criminal Convictions: A High-Risk Group

Another class of people who are likely to be especially vulnerable to the mass deportation agenda are those with criminal convictions. Trump made immigrants with criminal convictions the centerpiece of his anti-immigrant platform. It is entirely predictable that the new administration will display a laser-like focus on identifying individuals deportable for criminal convictions, regardless of how long ago the crime occurred or whatever mitigating factors are present.

Steps to Take If you Have a Criminal Record

At Benach Collopy, we have a strong practice of representing immigrants who have been convicted of offenses. We know that no one is defined solely by any good or terrible moment. There remain paths for relief available to those with criminal records, but it is best to prepare for those paths before immigration comes for you.

Expedited Removal: A Fast-Track to Deportation

US immigration law provides for removal of certain classes of people without bringing them before a judge. The process of removing someone without obtaining an order from an immigration judge is called expedited removal. It applies to individuals who cannot demonstrate that they have been in the US for at least two years. However, both Democratic and Republican administrations have only applied this provision to individuals encountered within 100 miles of the border. Yet, in the last Trump administration, there was significant planning to eliminate this 100-mile limitation and to apply expedited removal to the entire country. It was likely only due to COVID that this did not get accomplished and we can guess that this is something the Trump administration will seek to enforce in early 2025.

One danger of this is what happens if ICE encounters someone who has been here for more than two years but is not in possession of evidence of their presence. It is possible, under these circumstances, that individuals who are not legally subject to expedited removal get caught in the dragnet.

Protect Yourself from Expedited Removal: What should you do

Make a folder of documents to carry in your purse, glove compartment, backpack, or lunchbox that demonstrate that you have been here for two years or more. This can include birth certificates of children, tax returns, apartment leases, bank statements, purchase receipts, medical records, school records, utility bills, paystubs. Make a copy of the documents and place them in a folder and keep it near you.

You can also hire a lawyer to keep these documents and to be on call in case ICE seeks to arrest you. The lawyer can let ICE know that you are represented, are not subject to expedited removal, and that you intend to contest deportation.

Act Now Before the Storm Hits: Preparing Now Can Make All the Difference

It is true that a major storm is coming. However, like all storms, preparation can stave off disaster. The world will not change overnight on January 21 and it will take time to get these initiatives off the ground. Diligent preparation now before the storm hits will make all the difference.