On Sunday night, Donald Trump scaled back his campaign promise to forcibly deport the estimated 11 million undocumented immigrants living in the U.S., telling 60 Minutes, “What we are going to do is get the people that are criminal and have criminal records, gang members, drug dealers, we have a lot of these people, probably 2 million, it could be even 3 million, we are getting them out of our country or we are going to incarcerate.”
But the new number is hardly reassuring. To put that in perspective, 2.5 million people were deported during the first six years of President Obama’s tenure — far more than were deported by any other president and almost more than all previous presidents combined.
“For many of us, Trump’s America was already here,” Marisa Franco, an Arizona-based community organizer and director of the #Not1More anti-deportation campaign, told a gathering of activists shortly after Trump’s victory.
And while the president-elect’s comments, rhetoric, and choice of advisers have fueled panic among immigrant communities across the country, many are quick to point out that he is only going to exacerbate a broken system that’s already been defined by rogue enforcement agencies and rampant abuse for years.
“Obama built a horrible machine already,” said Danny Cendejas, an organizer with Detention Watch Network, a group that fights immigration detention and deportations nationwide. “Trump will just take it, and take it to a much more horrifying level.”
In fact, what Trump is proposing is not very different from what has already been happening under the Obama administration, which has prioritized the deportation of undocumented immigrants with criminal convictions. But there simply aren’t 2 to 3 million of them. According to the Migration Policy Institute, the number of undocumented people with criminal records is closer to 820,000, and even then many of those people are not the “rapists” and “criminals” Trump would have us believe but are guilty instead of “status crimes,” like driving without a license in states that won’t allow undocumented people to get one, or entering the country illegally.
Until the Department of Homeland Security issued a memo calling on enforcement agencies to prioritize the deportation of individuals posing a “threat” to national security and public safety, only 59 percent of those deported had been convicted of crimes, and even fewer of felonies. Since then, the record number of deportations under President Obama has dipped somewhat — but Trump’s repeated commitment to ramp up enforcement has many immigrant rights advocates fearing that the memo’s common sense provisions might be among the first to go under the new regime.
“I have no doubt that they’ll ramp up enforcement,” Wendy Feliz, communications director at the American Immigration Council, told The Intercept. “It seems likely that the memo will be struck and the new administration will cast as wide a net as possible to increase removal numbers.”
With fast, mass deportations come worse conditions in the already abysmal detention centers where so many immigrants are warehoused, and inevitable threats to due process — something everyone in the U.S., regardless of immigration status, is legally entitled to. The ACLU estimated that to fulfill his promise, Trump would need to quickly build nine more federal detention facilities, to make room for some 100,000 beds. And unless he’s going to pour massive resources into immigration courts, he’ll only exacerbate a backlog that’s already over 500,000 cases, the highest ever.
“There need to be hearings before judges — there’s a removal system, there’s a process for deporting people,” said Feliz, noting that immigration courts are already dealing with a record-high backlog of cases and shortage of judges. “It’s not as fast and straightforward as Trump has indicated.”
Current funding for Immigrations and Customs Enforcement — the agency in charge of removals — allows for about 400,000 deportations a year. At an average cost of $10,000 per deportation, Trump would need to get Congress to approve $20 billion to $30 billion in immigration enforcement funds to fulfill his promise. And that’s separate from the estimated $25 billion it would cost to build the wall.
Even with Congress solidly in Republican hands, it’s unlikely that either the wall or the budget needed for mass deportations — which would include funding immigration courts, not just ICE and Border Patrol agents — will come immediately. Paul Ryan already contradicted Trump earlier this week when he said that neither Republicans nor the president-elect are planning to mobilize a “deportation force,” and that instead, a “security enforcement bill” is the priority.
As is the case on many other issues, it’s hard to predict what this administration will actually do when it comes to immigration, but the rhetoric of the campaign and Trump’s comments since winning the election have put civil rights and immigration rights advocates on high alert, just as they have terrified immigrant families across the country. The ACLU, which since Election Day has received the greatest outpouring of donations in its 100-year history, has pledged to take the president-elect to court should he try to implement many of his campaign promises, including on immigration. Others are also preparing for a fight. “We’re already gearing up to do it all over again if we have to,” said Juan Cartagena, president of the civil rights group Latino Justice, which has sued ICE as well as state and local governments in the past.
Cartagena and others are counting on the fact that it will take years to change immigration protections that are already inscribed in the country’s laws. “Right now, the executive branch is worthless, the legislative branch is worthless, and the judiciary is the only place we can possibly go with any hope of undoing what the executive and legislative do,” he said.
“With time, the courts can actually narrow the rights that exist today,” he added, referring in particular to any Trump appointees to the Supreme Court. “But in the meantime, the law is going to remain as strong as it is now. If he gets re-elected, then we have a problem.”
There’s plenty of damage Trump can do in the meantime, mostly through executive powers already embraced by President Obama. For starters, Trump already pledged to undo much of what Obama achieved on immigration by canceling two executive orders. The first, Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, would have deferred deportation for as many as 5 million undocumented immigrants and given them permission to work in the U.S., but it has effectively stalled since the Supreme Court deadlocked on it earlier this year.
The second order, Deferred Action for Childhood Arrivals, or DACA, is not under legal challenge and has allowed 750,000 undocumented immigrants brought to the U.S. as children to apply for relief from deportation and obtain work permits. Earlier this week, President Obama urged Trump not to endanger the status “of what for all practical purposes are American kids.” But Trump’s insistence that he will walk back the order has already caused panic among the hundreds of thousands who voluntarily signed up for the program, essentially admitting their illegal status and sharing personal information with federal authorities in exchange for the promise of protection.
It’s unclear what canceling DACA would mean for them — they likely could lose work authorization, drivers’ licenses, and other protections that came with the order. But many also fear the government will now use the information it has compiled to track them down and deport them. “They know how to reach them if they really want to,” said Cartagena, noting that his organization and many others had encouraged young people to apply for relief. “The real question now is one of constitutional rights. To what extent would a court ever permit people who in good faith relied upon the government to defer deportation and willingly gave information, to now turn around and take those people and remove them forcibly, to rely on the federal government to protect you and then for them to turn around and use that against you?”
But while many of Trump’s immigration proposals are bound to face fierce legal battles, immigration rights advocates fear their impact at the local level — particularly in states and jurisdictions where in the past local officials took it upon themselves to push for harsher immigration enforcement when they felt the federal government wasn’t doing enough.
“The reason why local police thought they could get away with this is because they thought the federal government wasn’t doing enough to get rid of ‘illegal aliens,’” said Cartagena, referring to anti-immigrant legislation that was proposed — and defeated — in states from Arizona to Alabama. “Could you imagine if they now think the federal government is doing everything possible to deport as many illegal aliens as they can? It emboldens them to go back and try to enforce immigration law through local authority.”
“If I’m the local sheriff, who cannot stand the idea that I have so many Latinos in my midst, I’m going to go help and go out of my way and arrest on my own as many people as I can,” he added.
Local enforcement action of that sort can also be challenged in court — as was the case, for instance, with several lawsuits filed against notoriously anti-immigrant Sheriff Joe Arpaio, who last week was voted out of the post he’d held in Arizona’s Maricopa County for 23 years. But an administration encouraging immigration enforcement at the local level, along with the sort of anti-immigrant “law and order” rhetoric that defined Trump’s campaign, is bound to have a profound impact on immigrant communities across the country.
Specifically, immigration advocates fear the revival, under Trump, of Secure Communities, a controversial and now defunct program through which ICE recruited local law enforcement agencies into its immigration enforcement efforts, by having them flag anyone held in local jails — usually pre-trial detainees held over minor, often traffic-related violations — who might be deportable under immigration law.
The program, which was labeled a “witch-hunt” by critics, led to a spike in deportations, increased racial profiling and contributed to deteriorating relationships between communities of color and police. In 2014, DHS replaced the initiative with the Priority Enforcement Program, a similar initiative that supposedly only flags individuals identified as posing a “threat” in accordance with DHS’s 2014 memo.
The collaboration of local law enforcement with federal immigration authorities continues to varying degrees depending on local officials’ own stances on immigration. Many fear it’s about to get a lot worse.
Not everyone is on board. Some local officials — including in Los Angeles, San Francisco, New York, Denver, Philadelphia, and Chicago — have already come out to reiterate their cities’ status as “sanctuaries,” a definition that varies by location but that essentially protects undocumented immigrants against federal overreach through a series of local ordinances.
Los Angeles, for instance, which is home to more than 1 million of the estimated 11 million undocumented people in the country, does not honor federal requests for “retainers,” meaning it does not refer deportable individuals held for low-level crimes to federal authorities nor does it hold them in jail past their terms in order to facilitate deportation. The city’s police chief, Charlie Beck, said earlier this week he has no plans to change the LAPD’s ways.
“We are not going to engage in law enforcement activities solely based on somebody’s immigration status. We are not going to work in conjunction with Homeland Security on deportation efforts. That is not our job, nor will I make it our job,” he said. “Our law enforcement officers and LAPD don’t go around asking people for their papers, nor should they. That’s not the role of local law enforcement.”
California is one of five states that limit compliance with ICE requests, and some 200 cities nationwide have similar policies in place. Last month, in Illinois, a federal judge ruled the ICE requests to be unconstitutional.
But “sanctuary cities” are where many expect the Trump administration to put up a fight soon. The president-elect has pledged to withhold federal funds from cities that refuse to cooperate with the federal government — some $650 billion they receive for everything from police to community improvement, which would be a particularly hard blow for cities already struggling to make ends meet. A similar bill attempting to withhold funds from non-compliant cities was blocked by the Senate last year.
So far, mayors in sanctuary cities appear intent on fighting what is essentially federal blackmail. “We are not going to sacrifice a half million people who live among us, who are part of our community,” New York’s Bill de Blasio said in response to Trump’s threat. “We are not going to tear families apart.” Schools and churches have also pledged to ramp up their efforts to protect immigrants, and protests in solidarity with undocumented people have rocked the nation since last week’s election.
In fact, many expect the fight for immigrant rights will move to the local level more than it already has in the past — with activists and advocates pushing against anti-immigrant policies and elected officials at the state, county, and city level. Those efforts have been galvanized, in part, by the successful ouster of Sheriff Arpaio in Arizona. “There’s more potential for control at the local level,” said Cendejas of Detention Watch Network, which is also planning to fight ICE expansions of private detention facilities one contract at a time. “We have a much stronger chance of building up our power locally. We know ICE and the federal government will be doing all they can to bring localities in line with their plans, but that’s where we can fight back.”
Still, local officials can refuse to cooperate with federal enforcement agencies, but they can’t stop them from operating in their jurisdiction. “How local law enforcement reacts to a federal effort on steroids is very important, but none of those cities can stop ICE agents from going into those cities,” said Cartagena. “If he gets a congressional appropriation to increase federal border and federal ICE enforcement, there will be a direct line between him and federal enforcement that no local apparatus can stop.”
The main fear on that front is a massive spike in ICE’s infamous raids, which continued throughout the Obama administration and disseminated terror among immigrant families. Cartagena’s group sued ICE over raids the agency carried out in New York under its “Operation Return to Sender” — alleging they violated Fourth Amendment rights against unreasonable searches and seizures that apply to all on U.S. soil, documented or not.
“We’re concerned about to what extent, in a Trump administration, ICE agents will go crazy again trying to pick up people to make that 2-3 million quota,” he said. “What does it really mean to pick up that many people in a short period of time? What does this mean for human rights compliance?”