On Sunday’s 60 Minutes, President-elect Donald J. Trump said he would focus on deporting up to 3 million “criminal” immigrants. Many in the media, including CNN, mistakenly assumed that Trump meant undocumented immigrants with criminal convictions, and newsrooms reported it as such. In a Just Security post before the full 60 Minutes show aired, Ryan Goodman asked a leading immigration law expert Adam Cox what Trump’s reference to “criminal” noncitizens might include. Here is part of what Professor Cox replied (our emphasis added):
The term “criminals” is quite elastic in this context.
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.
… 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.
Professor Cox seems to be correct. On Tuesday, Kris Kobach, a member of Mr. Trump’s transition team, told CNN’s Brianna Keilar that is exactly what “the Trump administration will probably do.” Here is the transcript of his remarks (our emphasis added):
KEILAR: Can I ask you real quick, though, just because I want to — I want to understand something that he said, which was, he was talking about gang members.
KEILAR: He was talking about — it sounded like pretty serious criminal offenses that he’s talking about. And other people have looked at that and they have said, you know what, you’re really talking about a few hundred thousand people who would be deported. So explain to us how serious a crime someone would have to commit to warrant deportation? Is this any type of criminal record? Is this misdemeanors? What is this?
KOBACH: That’s a great question because that’s where a lot of the numbers end up not matching. So the way the Obama administration right now defines it, as far as their removal priorities are, they say you have to be convicted of an aggravated felony or convicted of three misdemeanor crimes in order to qualify for being removed, and everybody else is de facto allowed to stay in the United States.
Now, that’s pretty outrageous because many times a county will say, look, we’ve got these gang bangers here. They could be convicted for assault and battery. There was a big fight in the city park last night. But, you know what, we don’t have the resources to prosecute every one of them. In the past they would call ICE and say, hey, can you remove these people? But the Obama administration says, no, that doesn’t qualify as a criminal because they haven’t yet been convicted. I think you’ll see probably a Trump administration saying, look, we’re going to define criminal more broadly and not so narrowly and we’re going to get these 2 million out, starting with that 193,000 we already have identified and then moving from there.
KEILAR: So — but tell us, because he’s saying, drug dealers, gang members. So what are we talking about because I think it’s still — it’s still a little nebulous from what you’re describing?
KOBACH: What I’m saying is, I think, if you — the way you get to 2 million, and, again, we’re talking about definitions here. If you talk about people who have been convicted or arrested of any number of crimes, then you’re talking about a much wider —
KEILAR: But which ones?
KOBACH: Any felony for sure. And then the problem is arrests versus conviction. Such a tiny percent — well, I don’t want to say tiny, but a small percentage of the people who are arrested are ultimately convicted, not because they didn’t do it, but because the county involved doesn’t have the resources to prosecute every single person who’s arrested.
And that’s where — that’s where the federal government could come in and say, look, this guy’s a known gang member, he’s been arrested maybe multiple times. Sure they haven’t convicted him yet, but we ought to get him out of the country. And that’s what this administration, the Trump administration will probably do.