What to watch for: Aaron Reichlin-Melnick on immigration and mass deportations
How bad could Trump's mass deportation plan get? An interview with a senior fellow at the American Immigration Council
Donald Trump kicked off his 2016 presidential campaign with a hot stream of bilious lies about Mexican immigrants. He continued the fear campaign in 2024, targeting specific immigrant communities in Aurora, Colorado; Charleroi, Pennsylvania; Whitewater, Wisconsin; and of course Springfield, Ohio. Those lies, refuted even by Republican officials in those communities, wrought harassment, bomb threats, death threats, and demonstrations by white supremacists.
Trump also promised to deport millions of people during his first campaign, but in the end, his administration deported fewer people per year than Obama. This time, top aides like Stephen Miller have promised to apply the lessons they learned — the most important being to to purge any officials at DHS or DOJ who try to stand in their way.
Obama didn’t just deport more people than Trump, we also have him to thank for the career arc of Tom Homan, a brusque anti-immigrant warrior who has built a career out of making desperate people fleeing horrible circumstances suffer as much as possible. But Obama did at least restrain Homan’s more sadistic impulses. Trump indulged them, which is how we got child separation, and ICE operations like arresting undocumented parents as they pick up their kids from preschool.
Trump has since made Homan his “Immigration Czar.” Along with Miller, Homan will be responsible for implementing the incoming president’s vow to deport 12 or 15 or 18 or possibly 25 million people, depending on which promise you take at face value.
They won’t get anywhere near those figures, but they could still inflict a lot of pain and human misery — on immigrants and their families, but also on the U.S. economy.
Miller wants all but end legal immigration too, and the administration appears to be drawing up policies to do exactly that. Miller has enthusiastically also pushed the idea of “denaturalization,” or trying to strip naturalized Americans of their citizenship due to errors in their paperwork that could be decades old. And he’s the driving force behind Trump’s push to end birthright citizenship — which essentially amounts to the president-elect promising to violate the Constitution just weeks before he’ll take an oath to defend it.
But some contradictions and inconsistencies have emerged between Miller’s vision, Homan’s public statements, and what Trump himself has said. Trump has reiterated his promise for deportations enough that it seems pretty certain that not only will he at least try to see it through, it’s a top priority for him. This is not bluster. There are also institutional, legal, and logistical barriers to the mass deportation plans, and it’s not clear which of those the Trump administration will be able to bypass or blow through.
So how bad could it get? Who is at risk? And how might the mass deportation project unfold? I recently discussed these questions Aaron Reichin-Melnick, a senior fellow with the American Immigration Council.
I’ve edited our conversation for length and clarity.
Can you tell me a little bit about your organization?
Sure. The American Immigration Council is a nonprofit founded in 1987 to advocate for immigrant rights and the value of immigration. We envision a nation where immigrants are embraced, communities are enriched, and justice prevails for all. We use facts to educate the public and policymakers about the value of immigrants and how they contribute to the United States. So much of the debate about immigration is driven by fundamental misunderstandings of the system. We want to help people have more informed positions.
Over the last few weeks, the heads of two nonprofits in different policy areas I have interviewed told me they’re no longer comfortable speaking on the reord. They’re worried about being targeted by the next administration, particularly given legislation like the Stop Terror-Financing and Tax Penalties on American Hostages Act, which would let the administration strip organizations of their nonprofit status. Given that your organization will be working to stop Trump’s policies on an issue he has made a priority, are you also worried about retaliation?
We managed to get through the first Trump administration without any significant negative impact to us organizationally. And nothing we are doing is violating any laws. As an organization, we’re strict about compliance and making sure that we are dotting every i and crossing every t. We’re confident that our advocacy is firmly on the right side of the law. But anyone can take a look at what's happened in Texas with [Attorney General] Ken Paxton’s efforts to shut down certain nonprofits and see why people are nervous.
During the first Trump administration, Border Patrol targeted journalists who cover immigration and kept dossiers on them. The Reporters Committee for a Free Press obtained some of the internal communications, which showed that DHS officials compiled the dossiers because they thought the journalists could potentially be prosecuted under a federal law barring “encouraging or inducing” illegal border crossings. Under what seems like a preposterous theory of the law, Border Patrol decided that unflattering coverage of Trump’s immigration policy was in itself an “enticement” for people to cross the border illegally.
I know the Supreme Court has since narrowed the law in question, but it also isn’t clear what would stop them from opening those sorts of investigations again.
Yeah, that was in U.S. v. Hansen. The Supreme Court narrowed the encouragement prong of Title 8 of USC 1324, and held that the “encouragement” really means to facilitate or solicit a specific act of unlawful crossing. So while it might be illegal to say something like, “The Border Patrol will be absent from this specific location on Friday at 2:00 pm. If you cross the border then, you'll get through without being caught,” some advocates suggested that the law might be interpreted to make it illegal for somebody to argue that migrants have rights, that people who cross the border should be treated fairly, or even to say that they shouldn't be prosecuted at all.
Although the court declined to issue a definitive ruing on the grounds of constitutional avoidance, the end ruling does suggest that a majority of the court believes such speech is protected under the First Amendment.
But look at what’s happening in the states. I already mentioned Ken Paxton, but I'll mention him again. He has really led the charge in using his power as Texas Attorney General to go after migrant rights nonprofits. He has attempted to shut down or strip nonprofit status from multiple organizations that provide direct support, including several faith-based organizations that work along the U.S.-Mexico border. He attempted to shut down a nonprofit in Houston that supports migrants on the claim that it was violating its 501(c)(3) status by opposing some Texas laws, even while he simultaneously and happily accepted the support of conservative nonprofits that are very clearly electioneering by supporting specific candidates.
Paxton has also attempted to use Texas business law to go after these groups. So far, every one of these efforts has been a complete failure. He hasn’t found a single judge to rule in his favor on any of these issues. But people are nervous because he continues to try. They also have to divert a lot of resources to fight off those sort of attacks.
I think there is a very serious concern that we’ll see the new next Trump administration use similar tactics to go after nonprofits. There has been a concerted effort in the GOP to strip federal funding from any organization that works with migrants or undocumented immigrants in ways they disapprove of. The incoming administration is already promising to legally target people for a wide variety of reasons. So migrant rights nonprofits in particular are worried about being put in the crosshairs.
There was a maddening scenarios that kept playing out during the first Trump administration — there would be a report about some new horrible-sounding new policy, but then there would be follow-up reports or analysis stating that, actually, this horrible policy has already been in place for years. How much of what we’ve seen Trump and his aides propose is uncharted territory, and how much is just prioritizing or ramping up bad policies already in place?
There is definitely a history of the U.S. government going after people who support undocumented immigrants. During the sanctuary movement in the 1980s, over 500 churches around the country agreed to act as sanctuaries for undocumented immigrants. At the time the emphasis was on Central American asylum seekers, many of whom were fleeing the civil war in El Salvador or genocide in Guatemala. The federal government went after a number of them along the southwest border for trafficking and for harboring. So we’ve seen things like this before.
During the first Trump administration, federal prosecutors in Arizona criminally charged volunteers from the group No More Deaths, an organization that among other things puts jugs of water in the desert and provides food and emergency medical care for migrants in dangerous conditions. They were charged with things like operating a motor vehicle unlawfully in a national park, or littering for leaving out the jugs of water. Every one of them was acquitted or had their misdemeanor convictions overturned on religious freedom grounds.
So there have been threats in the past. There have been prosecutions in the past. And in the past, the US government has certainly taken some very harsh views towards people who support migrants.
Tom Homan has been saying that people who have felony records will be the first targets of the deportation plan. But Homan, Trump, and Stephen Miller have also made clear that no one who is undocumented will be safe. How do you see the mass deportation plan playing out? Will there be ordered phases? Chaos?
I think the most important thing to understand about ICE is that they already go after people with criminal records. For decades that agency has always focused on people with criminal records. That’s the result of a series of laws that Congress passed in the 1980s and 1990s refocusing immigration enforcement on criminality. Congress added new grounds for removability and created mandatory detention for people with certain convictions. That was the tough-on-crime era, so that’s really where Congress focused — any criminal interaction with the criminal justice system could be grounds for deportation. If you’re undocumented, even a very minor offense can get you onto ICE's radar.
ICE primarily discovers new targets inside the United States through a fingerprint check. So the agency has concentrated its resources on the easiest process for detaining people, which is going to local jails and picking up undocumented people already in criminal custody and transferring them into immigration custody. We ran the numbers and from 2009 to 2021, and 82 percent of all ICE arrests occurred in a custodial setting where the person was already in some form of criminal legal custody. Only 18 percent of arrests occurred out in the field.
What that means is that if you are released from criminal custody — if you live in a sanctuary jurisdiction that does not automatically turn people over — then ICE has to go out into the community to find you. And ICE never has enough resources to arrest every single person who pops up on their radar who isn’t in custody — who is out in the community.
That’s why ICE tends to prioritize those with the most serious criminal records. The biggest impact of sanctuary city policies is to reduce deportations of people who have no convictions but who have been fingerprinted by law enforcement while in custody for charges that were dismissed or are low-level misdemeanors.
Because ICE has to pick and choose how it uses its limited resources, it prioritizes people with the most serious criminal records. So when Trump says, “We’re going to round up all the criminals,” that’s already what ICE is already trying to do. And they can’t really do much more unless you really ramp up their capacity by massively expanding their arrest operations — more agents, more staff, more resources to go out into the field and pick people up. It’s an open question how and if they'll be able to ramp up that capacity, over both short and long term.
On the topic of increasing capacity, Miller says they’re planning to bring in the National Guard, local police, and active duty military. How exactly would that work? Are National Guard troops really going to access ICE databases, then march off to local jails to pick people up?
So ICE maintains something called the Non-Detained Docket, which is a list of all of people in the United States whom ICE believes are removable. But “non-detained” only means they're not detained by ICE. So the list includes people who are in state prisons, even people serving life sentences. They may also already be immigration court proceedings, on on bond while awaiting a court hearing that could be two years in the future. So “non-detained” doesn't mean these are all fugitives out in the community.
The data we have was released to a Republican member of Congress a few months ago, and of the 7.4 million people on the Non-Detained Docket, only around 650,000 of them had any pending or criminal charges at all. That’s less than 10 percent. Only around 2.5 percent had anything that could possibly be described as a violent offense. That should give you a sense of proportion, here. There is a population of people out there that ICE has as targets who do have some sort of offense, but it's not a very large portion of the undocumented population.
My point here is that if you want to do mass deportations, you’re going to have to expand your scope well beyond people with criminal records, because that's just not a major portion of the undocumented population. And it's an even smaller portion of the immigrant population. And even among them, the most common conviction for immigrants on the Non-Detained Docket is traffic offenses. Number two is immigration offenses — so illegal entry or reentry.
To find people who aren’t in local jails, ICE buys a lot of commercial data from brokers — license plate data, LexisNexis, lease data, rental data. So the growth of the surveillance state and private data brokers have made it easier than ever to find people. So ICE generally has an easier time finding out where these people than in the past. But all of that still takes time and effort.
ICE is also limited in what it can do once it actually goes out into the field to arrest people. ICE agents generally don't have judicial warrants, so if they want to go inside a building where somebody is staying, they have to get permission. Except under very specific circumstances, they can't just break down a door without a warrant. If they want to arrest someone, they usually have to stake out a house. They have to send five or six agents, maybe a few of them in plain clothes, to stake out a building and wait and see when their target leaves — or trick somebody in the building into letting them in. That’s all very labor-intensive, which limits ICE’s ability to rapidly increase enforcement.
I’ve been talking to former FBI agents about what Kash Patel might be able to do at the bureau. The confounding variable when trying to figure out how bad it could get is that we’re accustomed to this baseline idea that administrations have at least purported to adhere to existing law, policy and procedures. But we know that the specific aim of top Trump aides like Russ Vought is to simply dispense with any policies and procedures that get in the way of Trump’s goals. So when you say ICE is limited because they can’t break down doors without a judicial warrant, what if the administration just decides that they don’t need warrants? Federal law enforcement officials are basically immune from civil liability, and any criminal liability would have to be enforced by Trump’s own DOJ.
I guess my question is this: When you say ICE can’t do X because of Policy Y, what’s to stop them from just ignoring Policy Y?
That's a great question. And certainly, ICE has violated people's rights in the past. Accountability is difficult when it comes to many law enforcement agencies. But it’s especially difficult in immigration court, where there isn’t a general exclusionary rule like there is in criminal court. There are some limited exceptions — some aged case law about fundamental fairness or due process. That case law is occasionally still relevant, but it rarely gets results.
If we started to see some egregiously unlawful acts by ICE agents in the process of arrest, we could see some immigration court judges dismiss cases on fundamental fairness grounds just to make a point. There’s some decent precedent around that in the Ninth Circuit, but not really anywhere else. That said, the remedies for widespread constitutional violations like that are much more limited in the deportation space than they are even in the criminal justice space.
So if ICE were to start openly violating the law on a regular basis, immigration groups would probably go to court to challenge them. But I think ultimately this raises important questions about what it means to have a right if it becomes enormously difficult to vindicate that right.
And if I’m not mistaken, while some jurisdictions provide indigent defense for people accused of immigration violations, there is no constitutional right to an attorney for an immigration proceeding, correct?
There is no right to counsel provided by the government. You do have a right to obtain your own attorney.
But the vast majority of people facing deportation can’t afford a private attorney.
Yes. And it’s worse than that. There just are literally aren’t enough lawyers. There are currently 3.7 million cases in the immigration court and maybe 5,000 to 10,000 immigration lawyers who do removal defense. Indigence is one factor. But there are just not enough attorneys to handle even the current backlog, much less any significant increase in deportations.
I guess what I’m getting at is that your typical person facing deportation is not going to be in a position to say to an immigration court judge, “Hey, these ICE officers didn’t have a warrant, but they broke down my door and arrested me.” Most won’t be in a position to even know what is and isn’t legal.
I think that's why keeping track of raids and enforcement operations is going to be so important. People looking out for their own neighborhoods and communities will be important.
I hear people saying, “Well, they’re going to ignore the law, so the law is meaningless now.” I don't think that's a particularly helpful framing. I’m not ready to concede that the law is meaningless. If we give in to that sort of rhetoric — if we say well they’re just going to break the law anyway, so who cares? — it gives them a power that they don't have right now. It gives them license to operate with impunity — to ignore their own internal checks and balances. So I will continue to hold ICE to the legal standards they’re required to follow until and if those are completely shredded.
When you hear Stephen Miller lay out his dystopian vision — door-to-door raids, herding people onto military planes, housing them in tent camps along the border — it sure doesn’t seem like he’s planning to wait for immigration courts to rule on these cases. I think it’s notable that he has articulated plans on transport, detention facilities, deportation flights, and so on, but you don’t hear him talk about the need to hire more immigration judges or to procure more court facilities to hold hearings for all of these new deportations.
That’s both telling and ominous. Could they just start deporting people without due process?
It’s either ominous or it’s a sign that they don’t want to admit that their plan has some major problems.
There is a pool of people ICE could round up and deport quickly if they can identify and find them. These are people who have either already had immigration court hearings, or are no longer entitled to them. According to ICE, there are about 1.45 million people in the United States who fit this description. They’re people who currently have final orders of removal. So they could be removed without any further proceedings. Some have been ordered removed after going through a full court hearing, were ordered removed, and then didn't report for removal or absconded in some other way, deliberately and intentionally, and have been living in the United States on their own. Others are people who reentered the country unlawfully and have a prior order of removal that could be reinstated.
But many are people who just missed a court hearing. The penalty for missing an immigration court hearing is a deportation order. Just in the last decade, more than 700,000 removal orders have been issued for missing court.
But not all of those people missed court to abscond from the process. We’ve published research showing that about 20% of all removal orders for missing court are later overturned. There are several reasons why that might happen, but the most common is that the government didn’t provide the person with proper notice of the hearing. We don’t have exact statistics, but we think that figure of 1.3 million people who could be legally removed immediately is probably heavily weighted with people whose just missed a hearing — hundreds of thousands at a minimum.
This is the population that is most vulnerable to what Stephen Miller wants to do. If an ICE agent arrests somebody with a prior order of removal or an unexecuted final order of removal, that person could be on a plane within 48 hours of an arrest. So that’s a large number of people they could start removing immediately.
The problem is that it's not really clear that the government knows where all of those people are — especially the people who missed a hearing. The hearing they missed might have been six years ago. The last address the federal government has for that person is probably no longer relevant. So ICE has go to through the process of tracking that person down. Given that most of the people who fall into this category are going to be migrants who have no prior criminal record, they probably aren’t going to be the top priority.
The easiest targets will be people with prior orders of removal who are already checking in with ICE and have been granted stays of removal or some form of administrative forbearance. ICE can call those people in for a check-in and then just say, “Okay, bring in your luggage and your passport. That's it. We've been giving you stays of removal for years. We've changed our minds. You gotta go now.” They would be able to do this quickly. They did it during the first Trump administration.
For all the fearmongering about the border, isn’t the largest group of people here illegally people who overstayed a legal visa?
That is a big category. But another big category is people who entered the United States through the visa waiver program. These are people from Europe and other countries in which you don’t need a visa to come to the United States. Most people don't know this, but if you enter the U.S. through one of those programs — so say you're a British citizen and you fly to the US for tourism, but then never leave — by entering that way you have actually forfeited any right to challenge your removal in immigration court. The only way to delay removal is by making a claim for asylum.
As you say, there are also likely hundreds of thousands of people who entered through the visa program and then overstayed who aren't entitled to immigration court either. So an unknown number of people out there could be actually picked up and deported pretty quickly.
But there would still be massive logistical issues, no? At most, the U.S. has the capacity to deport a few hundred thousand people each year. Even by starting with these most vulnerable groups who could be removed quickly, you’re looking at well over a million deportations. Do they have the personnel and resources for that?
I think what we saw on the campaign trail and what we’re seeing right now are two very different visions of what Trump’s deportations will look like. There’s the Stephen Miller vision you mentioned, which he articulated to Charlie Kirk on a podcast last year. He talked about setting up staging facilities in Texas using military planes, deputizing the National Guard — a sort of shock-and-awe type plan.
The other vision is what Tom Homan is talking about. Homan is bombastic and has threatened to arrest people for harboring, but he has also described ICE enforcement as still operating under current procedures — so finding targets, and then going out into the community to arrest those specific targets. He even told 60 minutes that he doesn't like the term “raids.”
Both of these men are going to have influential positions in the White House. Which vision is carried out is the big question. Are these going to be standard operations accompanied by a lot of public relations work, maybe with a burst of funding from the Senate? If so, then by the end of Trump's term deportations will be at two to four times what they are today. If Trump goes with the Stephen Miller-esque shock and awe campaign — militarized enforcement, dozens of new detention centers built around the country to hold hundreds of thousands of people — that’s a much scarier vision. We’re taking both visions very seriously.
During the first Trump administration, we saw some highly-publicized workplace raids on industries known to employ undocumented immigrants. Homan has promised there will plenty more of these. It’s easy to see why. They provide those shock-and-awe visuals Trump’s more rabidly anti-immigrant supporters want to see. How difficult would it be for them to ramp up workplace raids? What sort of evidence do they need before conducting them?
The workplace raids often start with I-9 audits. So they conduct these audits to verify that businesses are tracking the status of their employees. The I-9 process is not foolproof. Many people find work with fake papers, either with fake Social Security numbers and fake documentation, or with real but stolen Social Security numbers. Once the government identifies a potential target, they typically spend months planning an operation. These are the operations that look like the sort of immigration raids you’ll see in a Hollywood movie. You'll have dozens of ICE agents, sometimes with support from local police. They’ll surround the building and cover every exit, then then run in with their guns out, line everybody up against the wall, and start questioning every person there.
We've seen raids in the past with serious accusations of racial profiling, where they told all the Latinos to stand up against the wall, and told all the white people that they could go. We’ve also seen lots of accusations of indiscriminate enforcement during these raids.
These are very splashy operations that cause enormous fear and harm in local communities. But they don't tend to produce arrests at a scale that makes a dent in the undocumented population. The first Trump administration carried out the largest work place raid operation in history in 2019. They raided seven chicken processing plants in Mississippi. In total, they arrested 680 people. That operation took months of planning and thousands of man hours. We know from similar raids during the Bush administration that each such raid costs millions of dollars. Most of the people who were arrested were put into immigration court because they had never been arrested before.
Five years later, most of them are still here. Some won their cases. Some had had their cases dismissed. Some were deported and then reentered illegally. Some, tragically, died trying to come back. There was one incident in which corrupt Mexican police shot up a car full of Guatemalan migrants and burned their bodies. Some were people who had been deported in those workplace raids and were trying to come back. The Mexican police officers were later arrested themselves.
That’s a horrible story, but it gives you some sense of the stakes and the scale here. When people are arrested in these raids, some will be deported. Some of them will come back. Some will die trying to come back. But at the end of the day, this raid cost millions and took thousands of man hours, but ended up arresting just 680 people in a population of 11 million undocumented immigrants. And only some of them were deported. It had a devastating impact on these towns, but didn’t really affect the broader undocumented population other than to spread fear.
But fear is really the best tool the U.S. government has against undocumented immigrants.
So the workplace raids are splashy, provide red meat for the far right, and sow a lot of fear. Lot of upside for Trump, but the paperwork and bureaucracy make it expensive and time-consuming. Given all of that, what’s to stop the Trump administration from just skipping the expensive, laborious part and just start raiding industries known to employ undocumented people without doing the necessary investigation?
Right now, it’s usually use the audits that provide probable cause for the warrants. So in the Mississippi case, I believe they had judicial warrants to investigate paperwork compliance. That’s what permitted them do a mass work site raid. At the end of the day, I think four managers of the business were arrested, and only one got any jail time. No higher ups at the company were ever charged. The owners got away without any criminal liability whatsoever.
That’s very common in these operations. You used to hear allegations about employers threatening ICE or INS raids to keep their labor force compliant. But there has to be a criminal hook for them to be able to do that kind of mass raid. So I don’t think we’ll see fishing expeditions where they don't have a warrant but they just go in and en masse and start routing people up. But you could certainly see them significantly increasing the number of raids and really focusing on making public relations splashes. I could see them using these kinds of raids to keep people in fear and less willing to come into work. That will destabilize people's income streams, and in the view of immigration opponents that could potentially push them to just leave on their own.
I think this will be a major tactic — aggressive, showy operations, but selectively used to frighten people into leaving before they ever get arrested — before they ever get targeted.
You say the Mississippi raid was the largest ever workplace raid, and it resulted in 680 arrests. I’m doing the math here, and even if every one of those arrests resulted in deportation, and even they did a raid like that every day, that would amount to about a million people over Trump’s four years. That doesn’t get them anywhere near the estimated 11 million undocumented people, never mind the 15, 20, or 25 million deportations Trump has promised.
So how do you think they’ll try to get closer to those figures? Even under the worst case scenarios in which they completely dispense with the rule of law, they’re still not in the same universe as the numbers they’ve been throwing out.
There's no world in which they deport 11 million people in four years. To get even close to that world would require a total break from all previous norms like nothing we've ever seen in the United States. It’s hard to see a realistic way we get there without the country descending into a complete military dictatorship. And even then, I'm not sure if the US Army could actually find and deport 11 million people in four years. It's just a staggering number of people.
You mentioned that if they deport 680 people a day, it adds up to about a million people over four years. That’s about 248,000 people per year. Well, that's actually not much higher than the previous record for ICE internal deportations. ICE deportations of people arrested in the interior — so not at the border — hit 238,000 in fiscal year 2009. ICE has never hit that number since. It actually hasn’t topped 100,000 since 2014. If ICE today quadrupled the number of internal deportations it’s doing under Biden, they still wouldn't top the numbers from the Obama years.
Trump has said he wants to end “catch and release,” in which people detained are freed on probation while they await a hearing. He also wants to speed up deportations of people already in immigration detention. Is that likley?
On the one hand it makes sense, because people already in detention are more likely to give up their case and agree to be deported without fighting.
Congress has appropriated funding for 41,500 beds. That’s how many people can be held in ICE detention at any given time. These are primarily at state and local jails or private prisons. Right now, over 90% of people in ICE detention are held in facilities operated by private prisons, either entirely by a private prison, or under a contract from a state or local government and then rented out to ICE.
Since the election, the private person companies have said that between them they have tens of thousands more beds that can be brought online. So around 20,000-40,000 more beds could be brought online within the next couple of years. We could also potentially see the U.S. military or ICE itself build temporary detention centers — so-called soft sided facilities, which are basically tent camps. That could add more yet capacity.
The conditions would be awful, and that in itself would probably be enough for most people to give up their cases and agree to be deported. Conditions are often so bad that they just don't want to deal with it anymore.
In fact, the two most important factors that predict success in immigration court — whether you get to stay or you get deported — are whether you have a lawyer and whether you are currently in detention. This means that if they start holding more people, we’ll likely see fewer people win their cases. With more people being held, there would also be fewer pro bono and public service lawyers to go around. So you’d have more people unable to fight or advocate for themselves because they’re detained with no access to a lawyer.
Being in detention also makes it harder to gather evidence to support your case. If your options are to fight your case from jail — oh, and you're going to be held there for six months to two years while you go through that process — or agree to give up and go back to your home country, many people will choose the latter. So as more people are brought into detention, more people are going to give up their cases early rather than stay and fight it out. This is one of the ways in which the administration will likely ramp up removals.
“If we say well they’re just going to break the law anyway, so who cares? — it gives them a power that they don't have right now. It gives them license to operate with impunity.”
Those are some pretty twisted incentives for the administration — the worse the conditions in the detention centers, the more likely it is people will stop fighting their deportation.
But even at the higher estimation of the number of beds that could be available, you’re topping out at maybe 100,000 people. As you said, there are 7.4 million people on the Non-Detained docket. Ending catch and release would require the federal government to detain all of them. That’s six times the current prison population of the entire country!
You’re completely correct. The U.S. government has never had the ability to detain everyone that Congress tells it to detain. There's a category called mandatory detention where the law says certain people must be detained. And yet as the Supreme Court has acknowledged, that just isn’t possible, because it bumps up against this fundamental reality that if you have 10 detention beds available and you arrest 15 people, you have to release five of them. Even if the law says all 15 must be detained. This is why every single presidential administration, including the Trump administration, has released many, many removable immigrants after they’ve been arrested. It’s just the basic reality that you can’t fit two people into one bed.
I think a big fear is that they might try.
Right. Currently ICE has standards about how much free space each individual must have. There are basic detention standards that have to be met. And maybe you could see the administration try to cut those standards so that more people could be crammed into smaller spaces. But here too the courts would have a role to play. People who are held in ICE detention must be treated under constitutional law the same way as people held in jails because immigration detention is civil detention, it's not prison. These people have not yet been convicted of a crime. Once you’re convicted, the Constitution allows you to be treated very differently — you can even be enslaved under the 13th Amendment. But people who are held pretrial, who have not been convicted, and people who are held in civil detention are entitled to better standards.
And there are other barriers. If you are arrested in the United States and you're just undocumented — you don't have any criminal record — say, you came over on a visa so you didn't even enter illegally, you are eligible to apply for bond. So a lot of people will successfully get bond.
Could immigration courts or Congress just stop granting people bond?
They could try. People would then have to file habeas lawsuits. And there have been plenty of successful habeas lawsuits. However, filing an immigration habeas can be difficult because it generally requires a lawyer for any chance of success, and in some federal district courts the waiting time to even get a hearing on a habeas claim is around eight months. So in some circumstances the availability of habeas almost becomes kind of pointless as a practical matter.
As you say, fear is the government’s most potent weapon. There has been a lot of discussion about how we walk this line of making sure immigrants, advocates, and immigration lawyers are prepared for what may be coming, but also trying not to sow unnecessary fear. One area where this debate has played out is whether legal residents or even U.S. citizens are at risk of mistaken/unlawful deportation.
On the one hand, given the logistical limitations and the existing population of people already legally eligible for removal, it seems unlikely that even under Stephen Miller’s dream scenario they’d ever get to the point where they’d consider consciously deporting people who are here legally.
But we also know that ICE already mistakenly arrests or deports people — according to a 2021 GAO report, the agency mistakenly deported around 70 U.S. citizens between 2015 and 2020. That number is likely to increase as the number of deportations increases, and it’s likely to disproportionately increase if we start bringing in the National Guard and military, and doing away with existing procedures and protections. We also know that there’s little way to hold ICE agents or military personnel accountable if they get overly enthusiastic and round up the wrong people.
So if you’re a legal resident, naturalized citizen, or even a native citizen who fits new administration’s profile of an “illegal,” how much should you be worried?
There's very little in the way of remedies for people whose constitutional rights are violated by ICE. It's very hard to get any compensation for that, and people generally don't have the ability to fight back. It’s a serious problem, and I do think that we will see many people have their rights violated. Many people will be swept up unjustly.
Sometimes that will be because of paperwork errors or mistakes by the government. But I also worry that as local sheriffs and others get involved, that will increase the risk of deprivations of rights. Local sheriffs are not experts in immigration law. The question of whether somebody is removable, what protections come with a green card, who is removable with a criminal conviction — these are all difficult legal questions. And checking someone's status isn’t always foolproof. The government screws this up frequently, which means that if enforcement becomes more indiscriminate, more people will be picked up who shouldn't have been picked up.
This is definitely something that we're quite worried about. It's just hard to say to what extent we’re going to see it. We obviously aren’t going to see a million American citizens picked up. But it's a very serious and very real concern.
In addition to Miller’s plan to enlist the National Guard and the military, he also wants to bring in local police. How much could we see local cops involved in deportations?
There’s a very real fear about deputizing local law enforcement. Section 287(g) of the Immigration and Nationality Act authorizes ICE to deputize local law enforcement to question people about their status, arrest them if they are potentially removable, and then even to detain them. It doesn't allow them to actually deport people without the cooperation of ICE itself. But it does allow for questioning, arrest, and detention, and that will allow them to rely on local law enforcement as a force multiplier.
And we're already seeing red states mandate that local law enforcement do this. Many local law enforcement agencies don't want any part of it. They say it makes their communities less safe and diverts resources from the regular policing. But in North Carolina, for example, the legislature just overrode a veto and now North Carolina sheriffs are required by law to cooperate with immigration enforcement authorities.
Would local law enforcement be permitted to the types of investigations that lead to workplace raids, or would they primarily be just checking the status of people they pull over or arrest for other crimes?
That’s a good question. It’s certainly a possibility.
The NY Times recently reported that some far-right militia groups are chomping at the bit to help with deportations. Is there any chance that the Trump administration could try to deputize some of them?
I don't see any legal authority for that.
Homan has also threatened to withhold federal funding to local jurisdictions that don’t cooperate with ICE. Didn’t they try that the first time around and get shot down in federal court?
So in the first Trump administration they tried to make Byrne/JAG grants, which are specifically for law enforcement, conditioned on three things: compliance with data sharing agreements with ICE, compliance with ICE detainers, and allowing ICE agents into detention facilities to interview people and potentially arrest them. Three circuits ruled that some or all of those conditions were unlawful, while the Second Circuit upheld the conditions as lawful.
It was all headed to the Supreme Court when Biden won and the case was mooted out. So they will very likely start that process all over again.
Do you see them going beyond Byrne/JAG grants and trying to withhold other types of funding?
Quite possibly. I think it’s a very real possibility. The Wall Street Journal reported last month that they will try to condition a wide variety of federal grants on compliance with enforcement. The legal argument they used the first time around was language in the Byrne/JAG statute, which said that you could make one of those grants conditional on compliance with all other applicable federal laws.
This is one of those lawsuits that was actually technically about a very precise issue around statutory authorization under the law, and actually not about immigration enforcement laws or broad grant-making authority itself. So I don’t think we can draw too many specific conclusions from it about general authority to condition grants.
Trump has vowed to revoke Temporary Protected Status (TPS) of the Haitian immigrants in Springfield, Ohio and immediately deport them. He is also expected to revoke TPS status for refugees from Venezuela, Congo, and Ukraine, and a host of other countries. Can he do that? How quickly could they be deported?
The most important thing for people to understand is that no, they cannot just start deporting them immediately. In order to deport someone you need a removal order. The government has to have official legal permission to deport someone, or some statutory process by which a person can be administratively ordered removed. There is nothing like that allowing for automatic deportation orders for people who have had their Temporary Protective Status terminated.
What that means in practice is that the Trump administration can strip those people of TPS, at which point they go from having official legal permission to be here to essentially being undocumented. But it’s much easier for the government to render you undocumented than it is to deport you. To deport them, they’d have to go through a two step process. First, they’d have to strip them of their status. Then they’d have to initiate removal proceedings. The latter process can potentially take years. So for people with temporary protected status or a protection like DACA, the biggest fear in the short term could be losing the ability to legally work and live in the country. That’s what’s could have the most immediate impact on their lives. Actual deportation proceedings would only occur over the long-term.
Here too, though, it seems like we may be in another one of those areas where what Trump has vowed to do butts up against the law. Springfield was obviously a huge campaign issue. What’s to stop the administration from just trying to deport people with TPS status without due process?
To deport them, they’d have to file individual notices to appear in removal proceedings for every single person. There's just no way to do that en masse. You cannot just have somebody click a button on a spreadsheet and 500,000 deportation immigration court notices go out. You need to have an individual immigration officer sign off on every single person's new notice to appear. And that's just administratively very difficult.
That's not to say they won't do it. They certainly could do it. But it would be a slow process, and it would be unlikely to produce large numbers of removal orders in the short term.
But again, that’s if they choose to follow the procedures. And organizations like yours aim to make sure that they do. But what if they don’t? What’s stopping them?
Very true. There's no guarantee that they will follow any of these procedures. That said, if they were try to put somebody in removal proceedings without going through the right procedure, that person's lawyer could go in front of an immigration judge and argue for the case to be terminated. And that kind of thing happens all the time. Immigration judge constantly terminate cases for being improperly filed. That's not new or unusual. There are checks and balances within the system. They are imperfect. And they are weighted against applicants and in favor of the US government and ICE. But they are there.
This is another one of those areas where if we ever got to the point where they can just ignore those checks and balances, the country has more or less broken down. I think there are lot of these areas — markers where, if ever get to that point, we've got bigger fish to fry because the country is gone. So I’m not saying it isn’t possible. It would just mean that the authoritarians have won, and that the era of the United States in which citizens have rights is over.
Miller and people like Russ Vought have made clear that they plan to simply remove anyone at a federal agency who tries to thwart their plans by pointing to laws or procedures. So let’s say there are some immigration judges who start denying removals because of abuses by ICE. Couldn’t the administration just remove those judges and replace them with judges who do their bidding?
They could, yes. Immigration judges are technically senior attorneys with the Department of Justice. They are not administrative law judges. They don't have the kind of protections federal judges or even administrative law judges have. So certainly the immigration courts are vulnerable. In fact, in individual cases the attorney general can actually intervene and decide cases on his own, and even set legal precedent. That power tends to only be used in a handful of cases, and it's pretty unusual for something like that to happen. So maybe if there is a major political case where there is a specific person they’re really trying to go after, and the immigration judge is making that difficult, I could see political interference occurring.
But right now there are 735 immigration judges, and there are 3.7 million cases, so you'd have to really draw the attention of the higher ups at DOJ for something like that to happen. It would be pretty unusual.
Last time around, Stephen Miller started a “denaturalization office” with a goal to strip citizenship from Americans who have been naturalized. Denaturalization is a laborious process, and at least in the past, the Supreme Court has been pretty skeptical of it. But Miller has been boasting about ramping it all up. And it does seem like the sort of thing that could easily be weaponized to go after high-profile naturalized citizens who are critics of the administration. How seriously do you take Miller’s threat?
I take the threat of denaturalization very seriously, but I’m skeptical it being used at the scale that Miller is threatening. Denaturalization is just a very difficult process for the U.S. government. You have to file a case in front of a federal district court judge, and you and the Department of Justice then have to litigate that case. And for very good reasons, the case law requires them to meet a really high standard. It's just not a process that lends itself to large scale abuse. For the potentially couple of hundred people who might get denaturalized under the Trump administration as a result of ramped up enforcement, it's going to be awful. But there’s just no way they can target any significant percentage of the millions of people out there who are naturalized US citizens.
So in terms of the things that keep me up at night, that isn’t particularly high. Again, not because it wouldn’t be a terrible experience. It’s more that there are so many other things they could do that would hurt a lot more people.
What about birthright citizenship? Obviously any attempt to repeal it will be immediately challenged in court. And despite some noise from a couple federal judges — and with the caveat that no precedent seems safe anymore — it seems pretty unlikely that Trump would prevail in court, no?
I genuinely don't think the Supreme Court is going to rule against birthright citizenship. It is just so well established, and the 14th amendment is just so clear, that there are no non-utterly crazy arguments against it. You’d have to buy into some pretty crackpot theories to get to a case where you rule against birthright citizenship. And so far there’s no sign that there’s a critical mass of the conservative judiciary that is willing to go for it.
In the interest of helping alleviate fear, here’s a fear I’ve seen some people express this fear on social media: Even if they were somehow able to get the Supreme Court to end birthright citizenship, would people who already benefit from that policy be safe? In other words, there’s really no chance the court could overturn birthright citizenship and apply the new policy retroactively, right?
I would certainly hope not. It’s true that if you look at other countries, there’s some precedent for courts ruling against minority groups of undocumented immigrants to strip away birthright citizenship. It's happened in India and in the Dominican Republic. So I'm not naive that it could happen here. I just don't think it’s likely to happen in the near future.
You made a reference to the things that keep you up at night. Is there anything I haven’t asked you about that keeps you up at night?
I've touched on it a lot, but fear really is the biggest thing. People are genuinely worried that they will be picked up and deported. And because of that they will change their behavior. They’ll act differently than they would have otherwise. This is the kind of thing that really impacts people's quality of life. The stress alone could literally take years off of people’s lives. No one wants to go around holding their passport with them at all times out of fear that they're going to be rounded up.
That kind of fear also has a corrosive effect on society. It discourages people from leaving their homes. It discourages them from meeting up in public, from taking part in society. And so in many ways, even if mass deportations never come to happen, millions of people will have their lives impacted as if it were happening anyway. That’s exactly what these threats are designed to do.
Sadism on steroids. Say "Hello" to the new America of hate and inhumanity. It is one thing to get immigration under control. It is quite another thing to relish bringing horror and misery into the lives of many who have in fact followed the rules.
Understanding the scale of the numbers that have been used in Trump's rhetoric is helpful. But I am always skeptical of them finding new loopholes. I've seen leftwing theories about a constitutional convention to repeal a number of amendments and while that sounds ludicrous, anything feels possible under this incoming administration.