Prof Adam Cox on What Trump’s Deportation of “Criminals” Might Really Mean

On this Sunday night’s 60 Minutes, President-elect Donald J. Trump tells CBS’ Lesley Stahl that he plans to focus first on deporting up to 3 million “criminal” immigrants. But what does that mean? What follow-up questions should reporters ask, and what facts should the public demand to know since so many people are now living in fear?

STAHL: What about the pledge to deport millions and millions of undocumented immigrants?
TRUMP: “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 two million, it could even be three million. We are getting them out of our country or we are going to incarcerate. But we’re getting them out of our country. They are here illegally. … We are going to make a determination on the people that you are talking about, who are terrific people. They are terrific people. But we are going to make a determination.”

My friend and colleague, Adam Cox, is one of the nation’s leading experts on immigration law. I asked him to provide his views for Just Security. His comments follow:

The term “criminals” is quite elastic in this context. Trump could be speaking in lay terms, in which he means to include people who have never been convicted of a crime but are suspected of committing crimes—or perhaps seen to be associated with a criminal element. Even if he were speaking in highly technical legal terms, his statement could include either a narrow or a wide range of people. It depends on what he really means and what he is really thinking. Let me try to offer a useful way of thinking about some of the most plausible scenarios—especially given what some of the senior staff on his transition teams have said in the past and how our deportation system has worked in recent years.

Category 1: No criminal convictions
It may sound far-fetched to suggest that the President-elect means to include people without any criminal convictions in his understanding of the “criminal aliens” who will be made deportation priorities. But it shouldn’t. Advocates for increased enforcement—and plenty of previous Presidential administrations—have often included undocumented immigrants who are picked up by police for loitering (a crime) or allegedly hanging out in a gang (related to a criminal element). These people can’t be deported for having been convicted of a crime–because they haven’t been. But because they have no legal right to stay in the country, they can be deported without the government ever having to prove they committed a criminal act.

Even during the Obama administration, government programs designed to target “criminal aliens” have resulted in deportations of large numbers of noncitizens with no criminal convictions. Most commonly this occurred when an immigrant was arrested on some minor charge by local cops, but then was never charged or convicted of a crime. Despite the absence of a conviction, immigrants without permission to be in the United States were frequently handed over to Immigration and Customs Enforcement for deportation. More recently, the Obama administration has taken steps to make it less likely that noncitizens with no criminal convictions will be deported just because they have been arrested by a local cop. But a Trump administration may well reverse those steps.

Category 2: Immigration offences
The President-elect says he now wants to deport only “people who are criminal.” But our immigration laws have long made it a crime to enter (or re-enter) the country without legal permission. Thus, one could argue that every person who has crossed the border without permission is a “criminal” who should be a deportation priority. But this logic is circular: it converts huge numbers of undocumented immigrants—people who were made the lowest deportation priorities by the Obama administration–into high-priority “criminal aliens.”

So, let’s assume Trump means only those cases in which people have been convicted for such an offense. Well, many noncitizens with criminal convictions have only a conviction for an immigration violation. That is, they have been convicted of illegal entry or illegal re-entry. It’s important to keep in mind that this happens to be the most charged federal crime today, so there are hundreds of thousands of noncitizens with these convictions. But treating them as the same as “gang members” and “drug dealers,” if that is what the Trump administration intends to do, creates the misleading impression that there are large numbers of “criminal aliens” when mostly what we have are a lot of immigrants who have only violated the immigration laws.

Category 3: Minor criminal offences
The Obama administration decided not to prioritize the deportation of noncitizens with very minor criminal records. It was misleading, the administration concluded, to treat an immigrant with, say, a misdemeanor traffic conviction as a dangerous “criminal alien.” But the President-elect may mean that his administration will make every immigrant with a criminal conviction a deportation priority, even if the conviction is for a minor local misdemeanor. Think I am exaggerating that this could be what Trump has in mind? Well, it is important to understand that this decision by the Obama administration to de-prioritize minor offenses was criticized by people like Kris Kobach who are reportedly helping lead Trump’s immigration transition effort.

Of course I am assuming for this third category that Mr. Trump is speaking only of undocumented immigrants. I suppose he could also be speaking of people who are legally in the country—including green card holders who have lived here for decades—but are deportable under federal law if they are convicted of even a relatively minor offence (sometimes even a misdemeanor).

 

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Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.