By Donald Kerwin / Bloomberg Opinion
Donald Trump’s inauguration arrives in just a few weeks, and with it the promise that the new president will quickly try to make good on one of his most troubling and damaging priorities: the mass deportation of millions of undocumented immigrants.
If successful, this plan would undermine the administration’s economic, budget-cutting and bureaucracy-reduction goals, while devastating families. The president-elect has incessantly described the undocumented as polluters of the nation’s blood, as criminals, animals, invaders and worse. Yet undocumented immigrants have long tenure here and are linchpins in essential occupations and industries; raising the question of how mass deportation became the centerpiece of the incoming administration’s agenda.
The concept is hardly new. The U.S. has been carrying out large-scale deportations for decades. Congress and successive administrations have invested massive amounts in immigration enforcement, roughly a nine-fold increase in real dollars since 2002. Yet Trump surrogates insist his plan will require “massive” additional investments.
Trump’s last White House tour saw fewer annual immigrant removals than in previous administrations. For his second act, he has vowed to deport a record 1 million people per year and to seal the U.S.-Mexico border. Neither will happen, but the plan will have severe consequences for immigrants.
Many will avoid accessing public services for which they are eligible. They will fail to report crimes or cooperate in investigations due to fear of deportation. There will be a surge in anti-immigrant hate crimes. Vigilante proposals, such as Senate Bill 72 in Missouri, which would pay state residents to find and detain their undocumented neighbors, will proliferate. Even with those miseries, it’s unlikely that large numbers will “self-deport,” as the incoming administration urges. Most of the undocumented have made their lives in the U.S. and believe their (mostly) U.S.-citizen children will enjoy a better future here than in their communities of origin. So they’ll do what immigrants have always done and try to tough it out.
Trump continues to sell his plans through a combination of falsehoods and proposals that will not survive legal challenges. He has inflated the size of the undocumented population (claiming 15 million-20 million) and exaggerated the threat it poses. There are roughly 11.7 million undocumented people in the U.S., slightly below the historic high of 12 million in 2008.
His plans would actually increase the undocumented population because he also wants to strip residency status from groups granted a temporary home here on humanitarian grounds (conservatively 2.5 million people). Venezuelans, Nicaraguans, Haitians and others will be forced to return to the dangerous countries they fled. Tom Homan, Trump’s nominee for border czar, supports deporting U.S.-citizen children with their undocumented parents. The children in many affected families, however, will remain in the U.S. with a second parent or a legal guardian, or be placed in foster care.
The incoming administration will also likely rebuild the so-called “paper wall” of high fees, bureaucratic barriers and regulatory requirements deployed during Trump’s last term, making it far more difficult for immigrants to gain legal status and permanent residence, further inflating the undocumented population.
Most of the undocumented cannot or should not be deported. Many languish, for example, in two of the major backlogs in the immigration system: the immigration court backlog of 3.6 million pending cases, and the 4.1 million backlog of people whose visa petitions have been approved. Some people are in both categories, or additional backlogs, such as the more than 1 million who have affirmatively requested asylum.
The best way to address these groups would be to await the disposition of their cases. The best way to fix the underlying problem would be to reform the visa system and invest far more in the immigration courts and asylum adjudicators.
The Posse Comitatus Act of 1878 bars military personnel from civil law enforcement. Yet, Trump has argued that he can deploy the military to remove immigrants because “these aren’t civilians” (they are), but are invaders (they are not), “like probably no country has ever seen before” (tell that to the Ukrainians). He vows to “rescue every city and town that has been invaded and conquered” (which would be none).
Trump’s related proposal to deny citizenship by executive fiat to the U.S.-born children of undocumented immigrants applies the logic of the infamous Dred Scott decision to this discrete group. It would violate the plain language of the 14th Amendment and transform a country renowned for its historic genius at integrating immigrants into one with a hereditary underclass of “illegal” persons.
Trump has vowed to target convicted felons and security threats. Yet these populations have been removal priorities of all recent administrations, with the arguable exception of the first Trump administration, which set such broad enforcement priorities that it effectively set no priorities. Moreover, programs and systems have long been in place to remove people after they serve prison sentences. The same holds true for those ordered removed by an immigration judge. Yet Immigration and Customs Enforcement, for various reasons, has failed to execute 1.4 million outstanding removal orders.
Trump’s case for mass deportations also relies on the inaccurate claim that most immigrants are “unchecked and unvetted” before entering the country. Instead, most border crossers present themselves to border agents, and most of the undocumented in recent years entered legally on temporary visas, which they overstayed.
Trump claims the U.S. will not need to build “new migrant detention camps” because “we’ll be bringing them out of the country,” but his own appointees have championed “camps” and vast holding facilities. Trump pardoned and has repeatedly praised Joseph Arpaio, the former sheriff of Maricopa County in Arizona, who detained immigrants in sweltering desert tents and forced men to wear pink underwear, while engaging in a broader pattern of racial profiling and constitutional violations. Perhaps this will be the administration’s model.
Some immigrants voted for Trump, believing he would improve the economy and deport criminals. However, if past is prologue, the second Trump administration will treat all undocumented immigrants and their children as criminals. This means trying to remove 4.8 percent of the U.S. workforce at a time of successive years of near full employment. Three-quarters of the undocumented are considered “essential workers,” compared to 65 percent of native-born. Immigrants also work in more dangerous industries and occupations than natives, as measured by injury and fatality rates. The agricultural, hospitality, construction and health industries will be particularly hard hit. Employees will disappear, consumer costs will rise, and businesses — large and small — will fail.
There is an alternative. Since 1929, the U.S. has offered legalization (called “registry”) for undocumented residents with good moral character, acknowledging that otherwise deserving immigrants fall through the cracks of the legal immigration system. In that law’s early decades, Congress regularly advanced the entry date for program eligibility. However, to qualify today, an undocumented immigrant would need to have entered the U.S. more than half a century ago. A one-sentence bill changing the entry date to Jan. 1, 2010, would cover 79 percent of the U.S. undocumented population and ease pressure on federal immigration agencies.
If Trump is serious about fixing our immigration challenges, he should embrace a registry program, provide robust funding for immigration courts, and reform the visa process. All of those actions would do far more to create a successful and safe immigration system — and country — than a cruel mass deportation program.
Donald Kerwin is the editor of the Journal on Migration and Human Security. He is a former executive director of the Center for Migration Studies of New York and former senior research associate at the University of Notre Dame’s Keough School of Global Affairs.
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