The election of Donald Trump as the 45th President of the United States on November 8th shocked and surprised many Americans and people around the world. During his campaign, Mr. Trump promised his supporters that he would make drastic changes to U.S. immigration policy. The United States has a system of limited and divided government. While a president has immense power, it is not unlimited. Both the U.S. Congress and Supreme Court may check the actions of a president. Candidates often make promises while campaigning but then temper their positions after the election, becoming more moderate and closer to the political center. All of these factors will effect whether and in what way Mr. Trump’s immigration proposals are implemented. 

      Mr. Trump’s immigration proposals, his “Ten Point Immigration Plan,” is outlined on his former campaignwebsite.

      In Part 1 of this two part article, I will review some of Mr. Trump’s immigration proposals, discuss his actual ability to implement these proposals and will explain their likely effect on both current and prospective immigrants.

The Southern Wall

     Mr. Trump promised to build a physical wall along the southern border of the U.S. with Mexico. A large part of the U.S.-Mexico border is already fenced. The efficacy of a border fence at reducing illegal immigration from Mexico is also highly questionable. Mr. Trump, apparently forgetting or unaware of the fact that it never prevented invasion, often cited the Great Wall of China as an example of an effective border wall. In places where border fences already exist, tunnels up to 800 yards long through which drugs and people are smuggled are often discovered.

     In order to build such a wall, the U.S. Congress will have to appropriate funds for construction. Mr. Trump promised that Mexico would pay for the wall, a suggestion which Mexican President Enrique Pena Nieto dismissed. Many ranchers and private landowners do not wish to give up their lands for construction of a border wall. Under U.S. law, private landowners will have to be compensated a fair amount before their land is taken for public use. With a Republican Congress and strong support among Trump supporters, the southern wall may well be built. U.S. taxpayers must be prepared to bear the expense of construction and ongoing maintenance and should not expect a decrease in illegal immigration from Mexico which, notably, has been in decline for many years with more Mexican immigrants leaving the U.S. than entering. It is also possible, if not likely, that the barrier that will be constructed will morph from a physical into a virtual wall that will seek to increase surveillance through electronic means.

The Muslim Ban

      Early in the campaign, chief among Mr. Trump’s immigration proposals was a promise to impose a ban on Muslim immigration to the U.S. Trump later refined his stance to suggest that any ban would be temporary and would limit immigration from areas that had a history as points of origination for terrorist attacks against the U.S. or its allies or where onsite screening could not be completed.  Mr. Trump also suggested that some of the Middle Eastern nations should provide safe havens and support for Syrian and Yemeni refugees. The proposed Muslim ban later morphed into “extreme vetting.” Exactly what this would entail is a matter of conjecture as the Trump plan has not been presented with adequate detail. What can likely be expected is longer processing times for asylum applications and more extensive background investigations that may rely either on specific intelligence or forms to evaluate the security risk that may be posed by specific applicants.

     An outright ban on a religious group is highly unlikely. However, because such a ban would be implemented in the immigration context, it is likely that the U.S. Supreme Court would find that such a ban was within the powers of Congress and the president to regulate immigration. Courts have traditionally not interfered with the two other branches of government in the immigration field. This does not mean that the American public as a whole would easily accept such a ban as the U.S. is a nation that was founded upon the idea of religious freedom and which has fiercely protected this freedom. In my opinion, there will be no outright Muslim ban but a suspension of immigration from some majority Muslim countries with more stringent processing which will result in longer wait times for applicants. There is likely to also be increased suspicion of and perhaps, formally or informally, whether warranted or otherwise, a policy of disfavoring Muslim applicants.

Mass Deportation of Illegal Immigrants

     As of 2014, there were approximately 11.4 million illegal immigrants in the U.S. with approximately 8 million, about 5% of total workers, participating in the economy as members of the civilian workforce. Many of them have lived in the U.S. for more than a decade. Workers without legal status pay billions of dollars in taxes, including Social Security taxes, and are ineligible for most benefits. A mass deportation, to include detention awaiting deportation, on the scale described Mr. Trump’s plan would cost $400 to $600 billion dollars from the federal government alone over the course of twenty years. The estimated costs of mass deportation within two years is much greater. These costs do not include losses suffered due to disruption in the economy which may reach $1 Trillion.

    The U.S. takes a mixed approach to immigration enforcement. This is due to in part to the dependence of U.S. business on foreign workers to fill certain jobs. Immigration enforcement is also tempered by humanitarian concerns. Undocumented children in the U.S. are entitled to attend public schools in the U.S. Under the Emergency Medical Treatment and Labor Act (“EMTALA”) any person who presents at a U.S. hospital in labor or in need of medical care will be treated until stabilized and transferred to a specialty facility if necessary regardless of their ability to pay. Those who are deported are entitled to due process, notice and a hearing, prior to deportation.

    Due to the mere scale of the undocumented population in the U.S., mass deportation is perhaps the most unworkable of Mr. Trump’s immigration proposals. It is highly doubtful that the federal government alone, or with the assistance of state and local law enforcement, will be able to dedicate the resources necessary to seek out and deport all undocumented persons. A Trump administration and Congressional Republicans will have to balance delivering on campaign promises to supporters who want to see action with the demands of important business sectors that rely on undocumented workers to maintain profitability. They must also avoid triggering an economic recession or a  humanitarian crisis. Rather than drastic action, it is much more likely a Trump administration will attempt to proceed with a more incremental approach. Anything less than the drastic action promised during his campaign may or may not his appease supporters.

    I predict that the first step in implementing Mr. Trump’s immigration proposals will be to announce that undocumented immigrants who depart from the U.S. within a certain time period will be treated more favorably during any subsequent visa application process than those who are forcibly deported. At the same time, he may state or imply that those arrested by immigration authorities will be held in detention centers until deported and/or subjected to large fines and harsh immigration consequences, including a lifetime ban on travel to the U.S. Many undocumented immigrants, many of whom were brought to the U.S. as children, will see themselves as having no choice but to depart to foreign countries which they may have never visited and whose language they do not speak. Those arrested and placed in detention will be offered relative leniency if they agree to voluntary departure prior to a hearing. Resistance to this policy can be expected which will include acts of civil disobedience, strikes and boycotts. Civil unrest is not unlikely.

    The second step in implementing the deportation component of Mr. Trump’s immigration proposals will be to roll back the policies of the Obama administration that provided some protection for undocumented immigrants in the U.S. Under the 2012 Deferred Action for Childhood Arrivals Program (“DACA”), anyone under 31 years of age at the time of the program’s enactment who was brought to the U.S. prior to their 16th birthday and had no significant criminal record is eligible to defer deportation for two years subject to renewal and may receive employment authorization. A similar program, the Deferred Action for Parents of Americans Program (“DAPA”), would have granted similar benefits to the similarly qualified parents of U.S. citizen children. DAPA was not implemented and is currently subject to a federal court injunction which the U.S. Supreme Court was unable to completely adjudicate as it currently has only eight members who split 4-4 when considering the case.

    Both DACA and DAPA are not laws enacted by Congress but executive actions of the Obama administration. Mr. Trump can reverse these policies governing the federal bureaucracy by simply issuing an order. This will likely occur on his first day in office. Further, there is some well founded fear and speculation that a Trump administration will use data gathered under the DACA program to identify undocumented immigrants. A program that brought hope to many immigrant children may soon be the instrument of their removal.

    The third step in the implementation of Mr. Trump’s immigration proposals will be to actually step up enforcement efforts. State and local law enforcement agencies may choose or decline to take part in both the apprehension and detention of undocumented workers. Ending release prior to deportation is second on the list of Mr. Trump’s immigration proposals. The U.S. already has the world’s largest prison population with more than 2.2 million persons in federal and state prisons and local jails. Depending on how vigorously the mass deportation policy is pursued, detention facilities may be strained. The method of enforcement is also questionable as Mr. Trump has provided no more detail than to state “We’re rounding them up in a very humane way, a very nice way,” in a 2015 interview with the Washington Post in which he also favorably cited the infamous and dubiously effective 1950’s expulsion program commonly referred to as “Operation Wetback” in which thousands of migrant workers were transported in cramped and pitiful conditions to be dumped into the streets of Mexican towns and ports.  

    A final means of forcing a mass exodus of undocumented immigrants in Mr. Trump’s immigration proposals is expansion of the E-Verify system to prevent undocumented workers from obtaining and maintaining jobs. E-Verifyis an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. While on its face this may seem to be fair and efficacious, the E-Verify program is notoriously unreliable. It only identifies unlawful workers half of the time. Glitches in the E-Verify system may cause qualified workers to delay or be denied job opportunities. E-Verify is also unpopular among employers and subject to acts of avoidance. An expansion of E-Verify, to the extent that the Republican Congress might approve it, would not serve to remedy the perceived problem for which it is proposed as a solution and would likely not be an effective tool in support of mass deportation.

Conclusion

   The election of Donald Trump as president will caste immigration policy into a state of flux for some time. If you are an undocumented immigrant currently in the U.S. or are considering traveling to the U.S., it important that you stay informed of the most recent developments. 

    In Part Two of this article, I will address Mr. Trump’s immigration proposals as they pertain to the H1-B program, birthright citizenship, the likely effect his policies will have on processing of non-immigrant visas for business, travel and study, questions of due process and how the America’s organized immigration bar may resist certain parts of Mr. Trump’s immigration proposals.