From the start of his Presidential campaign Donald Trump has made immigration and mass deportation a central tenent of his candidacy. Lately that’s been changing and shifting and this Wednesday Mr. Trump is supposed to make a major speech to finally explain what he’s been telling us for 15 months.
DES MOINES, Iowa— Donald Trump sought Saturday to reassert control of an immigration story line that has bedeviled his campaign in the last week, telling an Iowa audience that he would deport “criminal illegal immigrants” immediately upon being sworn into office.
Yet the Republican presidential nominee didn’t offer any detail on whether he would abide by his primary-campaign pledge to install a “deportation force” to remove 11 million illegal immigrants from the country. Instead, he blamed the media for focusing on his old campaign promises instead of what he deemed more pressing issues.
“In recent days, the media—as it usually does—has missed the whole point on immigration,” Mr. Trump said. “All the media wants to talk about is the 11 million…that are here illegally.”
Mr. Trump said he would prefer not to discuss what would happen to undocumented immigrants who haven’t committed crimes.
Ok, so let’s table the discussion of the 11 Million undocumented for now. In recent days Mr. Trump has proclaimed that he would deport “all criminal” immigrants “within his first hour in office” which may be a improvement over his previous plan to reinstall Eisenhower’s deadly and dangerous Operation:Wetback but it still betrays a deep, deep failure to understand exact how the immigration and deportation process actually works.
Via Talking Points memo.
"We are going to get rid of the criminals and it's going to happen within one hour after I take office, we start, okay?" Trump said according to a report from the Washington Post. "In this task, we will always err on the side of protecting the American people. We will use immigration law to prevent crimes."
First and foremost it seems that Donald Trump doesn’t understand the 5th Amendment.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
This Amendment doesn’t say anything about “citizens” — it says quite clearly “No Person”, that means persons who are, like, people. That includes immigrants. All of them. Under this view people who are generally located within the interior of the United States who have not followed our immigration laws and procedures and are subject to deportation are generally allowed a hearing before a judge.
There are numerous ways in which a non-citizen may come to the attention of the immigration authorities. These include anything from a phoned-in tip that the person is in the U.S. illegally (though followup on these is less common than one might think) to a workplace raid to a check on the immigration status of people in jail to a failed application for asylum, a green card, or even naturalization (U.S. citizenship). (Being denied citizenship is not grounds for removal by itself, but during the process, a criminal conviction or other grounds for removal may come to light.)
DHS must serve the alien with a Notice to Appear (NTA) before an immigration judge. It must inform the alien of:
- the nature of the proceedings
- the alleged grounds for removal
- the person’s right to hire an attorney (at personal expense), and
- the consequences of failing to appear at scheduled hearings.
Removal hearings are held before immigration judges (IJs) across the United States, under the auspices of the Executive Office for Immigration Review (EOIR). The IJ will determine whether the alien's actions or lack of immigration status make him or her removable from the United States, or whether the alien merits any legal or discretionary relief.
Usually, this is how things are handled. Other than those who are caught trying to enter the country by the Border Patrol and are subject to immediate return people get a hearing to verify that they are genuinely subject to removal under due process. That’s part of the American system.
That’s the law.
So Trump literally can’t just decide all “criminals” immigrants can be instantly deported without an appeal or a hearing as he claims. That. can’t. be. done. However there are limited exceptions if someone can be found by the government of committing an “aggravated felony.”
An offense need not be “aggravated” or a “felony” in the place where the crime was committed to be considered an “aggravated felony” for purposes of federal immigration law. Instead, an “aggravated felony” is any crime that Congress decides to label as such. As two prominent immigration judges recently noted, numerous “non-violent, fairly trivial misdemeanors are considered aggravated felonies under our immigration laws.”
As initially enacted in 1988, the term “aggravated felony” referred only to murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices. Congress has since expanded the definition of “aggravated felony” on numerous occasions, but has never removed a crime from the list. Today, the definition of “aggravated felony” covers more than thirty types of offenses, including simple battery, theft, filing a false tax return, and failing to appear in court. Even offenses that sound serious, such as “sexual abuse of a minor,” can encompass conduct that some states classify as misdemeanors or do not criminalize at all, such as consensual intercourse between a 17-year-old and a 16-year-old.
These persons can be deported without a hearing, and in fact an immigration judges are actually barred from canceling their deportation, they can be detained without appeal, are not allowed the option of “voluntary departure” which would allow them to leave without having deportation on their record, they can also barred from readmission and further punished if they do return to the U.S. after being deported. Following the Oklahoma City Bombing the definition of “aggravated felony” was greatly expanded by the Illegal Immigration Act of 1996, signed by President Bill Clinton.
This is the current list.
- murder
- rape
- sexual abuse of a minor (which can include statutory rape)
- drug trafficking
- trafficking in firearms or destructive devices
- various other offenses concerning firearms or explosive materials
- racketeering
- money laundering of more than $10,000
- fraud or tax evasion involving more than $10,000
- theft or violent crime with a sentence order of at least one year
- perjury with a sentence of at least one year
- kidnapping
- child pornography
- trafficking in persons or running a prostitution business
- spying, treason, or sabotage
- commercial bribery, counterfeiting, forgery, or trafficking in vehicles
- failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
- alien smuggling, and
- obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year.
Since then Federal Courts have upheld that even minor crimes can be considered “aggravated felonies”.
- In 2001, a federal appeals court agreed with DHS that due to a conviction for a misdemeanor shoplifting crime, Alexander Christopher met the legal definition of an aggravated felon. The court ruled that the fact that his sentence was suspended was "irrelevant" but noted that Congress, in expanding the reach of aggravated felony provisions of the law, was "breaking the time-honored line between felonies and misdemeanors."
- In 1999, a federal court upheld an aggravated felony designation for Winston Graham for the misdemeanor crime of petty larceny. The panel of judges said its hands were tied under the federal statute, calling it a "carelessly-drafted piece of legislation."
So that’s pretty broad and ripe for some considerable abuse.
Over the last few years the Obama Administration has been breaking records with their rate of deportations both internally and at the border deporting over 2.5 Million since he became President.
This is what Fusion says about Obama’s deportation rate.
Since coming to office in 2009, Obama’s government has deported more than 2.5 million people—up 23% from the George W. Bush years. More shockingly, Obama is now on pace to deport more people than the sum of all 19 presidents who governed the United States from 1892-2000, according to government data.
And he’s not done yet. With the clock ticking down his final months in office, Obama appears to be running up the score in an effort to protect his title as deporter-in-chief from future presidents. To pad the numbers, Homeland Security is now going after the lowest-hanging fruit: women and children who are seeking asylum from violence in Central America.
Yeah, ouch.
According to the TRAC approximately 300,000 persons have been deported for “aggravated felonies” over the past 15 years, which averages to ~20,000 per year, which is less then 9% of those deported during FY2015 by President Obama.
FY2015 Removal Summary
- ICE conducted 235,413 removals.
- ICE conducted 69,478 removals of individuals apprehended by ICE officers (i.e., interior removals) (Figure 2).
- 63,539 (91%) of all interior removals were previously convicted of a crime.
- ICE conducted 165,935 removals of individuals apprehended at or near the border or ports of entry.3
- 59% of all ICE removals, or 139,368, were previously convicted of a crime.
- ICE removed 75,829 criminals apprehended at or near the border or ports of entry.
- 98 percent of all ICE FY 2015 removals, or 230,715, met one or more of ICE’s stated civil immigration enforcement priorities.4
- Of the 96,045 individuals removed who had no criminal conviction, 94 percent, or 90,106, were apprehended at or near the border or ports of entry.5
- The leading countries of origin for removals were Mexico, Guatemala, Honduras, and El Salvador.
- 1,040 individuals removed by ICE were classified as suspected or confirmed gang members.
Donald Trump like Ted Cruz and many Republicans like to complain that our “borders are open” but the fact is that the Border Patrol stops and interdicts and returns over 80% of those who attempt to enter illegally, yes that leaves room for improvement but it’s not like nothing is being done at all as Trump and others claim. They also like to claim that over 104,000 Criminal Aliens were “released” in the U.S. by the Obama Administration in 2013 but that isn’t entirely correct. Some were freed from detention largely because we only have 34,000 beds available for holding immigrants awaiting their final removal hearing and as shown above were removing 5 to 6 times as many as that each year internally, so it’s not that they’ve been completely let go without facing further action.
Frazier told us Cruz also drew on a May 2014 report from the Center for Immigration Studies, a think tank that focuses on lessening immigration. That report said that from October 2012 through September 2013, ICE "freed 36,007 convicted criminal aliens from detention who were awaiting the outcome of deportation proceedings," according to an agency document obtained by the center.
These people were released simply because we ran out of room to hold them until their final removal hearing, not because they were just let go without any follow up. Certainly some may run away and hide to avoid their hearing, but that means they’ve “failed to appear” and puts yet another crime in their jacket and increases the odds they’ll be found eligible for deportation “in absentia” and can be removed without any further detention or hearings — so not showing up doesn’t really help them any, quite the reverse.
All of these persons are still subject to removal and may actually have been removed in later years, but what this additional chart shows is that the vast majority of these people who weren’t subject to immediate criminal deportation were only guilty of fairly minor traffic violations (17,000) or else DUI’s (15,000). Very few of these were felonies let alone involved violent crimes such as Homicide with a weapon (19).
(View Enlarged Image)
It should also be pointed out that all of these people served their time and had been paroled following completion of their sentence prior to being review by ICE.
This is in addition to those whom simply didn’t match the administration priorities for arrest, detention and removal, because many of those people aren’t criminals.
And what of the other 68,000 individuals Cruz described in Iowa as released?
Such a figure came to light in a March 2014 center report, which also made it clear the count did not reflect individuals freed from detention. Rather, the report said ICE agents in fiscal 2013 chose not to act against that many "aliens with criminal convictions, or 35 percent of all criminal aliens they reported encountering. The criminal alien releases typically occur without formal notice to local law enforcement agencies and victims," the report said. The "vast majority of these releases occurred because of the Obama administration's prosecutorial discretion policies, not because the aliens were not deportable."
"Under current policies," the report said, "an alien generally must have serious criminal convictions, prior deportations, or immigration violations before an officer can move to deport them." That may have been a reference to a 2011 memo issued by the then-director of ICE, John Morton, urging agency officials to use discretion in deciding which apprehended violators of immigration law should be removed with particular care taken with veterans, longtime legal permanent residents, minors, elderly individuals, pregnant or nursing women and individuals here since childhood. Negative factors also should be weighed, the memo said, including whether individuals pose a risk to national security, are serious felons or known gang members or have egregious records of immigration law violations.
So what’s happening is that the administration has prioritized gang members and criminals that are risks to our national security and other criminals over children who were brought here while underage (as in the DACA program) or parents or children who were born American Citizens (similar to the DAPA program) are elderly, pregnant women, veterans and longtime residents without a criminal record (all of which IMO with the now stalled implementation of DACA and DAPA at least partially accounts for the marked decline in interior removals over the last couple years shown in the charts above). In fact their only “crime” may have been violating immigration laws themselves. In other words, Obama has been doing what’s humane and frankly logical.
There’s also lately been another problem with removing violent criminal immigrants. Some of their home countries won’t take them back.
WASHINGTON — Thousands of immigrants with criminal convictions, including for assault and attempted murder, have been released from detention because their native countries refused to take them back, according to statistics recently released by the Department of Homeland Security.
The inability to deport the criminals has prompted outrage among lawmakers and advocates of tighter immigration laws, who say that the Obama administration could be doing much more to pressure uncooperative countries.
But the department faces a number of obstacles. It is legally barred from indefinitely detaining immigrants who cannot be repatriated. And poorer nations are often reluctant to take back violent offenders because they have limited resources to deal with them.
So that’s yet another problem I seriously doubt Trump even recognizes, let alone has a solution for.
Donald Trump claims he will remove “all criminals” immediately but the Obama Administration is already removing over ten times as many of those who are open to be administratively removed without a hearing by an Immigration judge as “aggravated felons.” Some countries simply won’t take them back and many have to be released because as I said earlier, there are only 34,000 beds in our current immigration detention facilities and those remain almost constantly at full capacity.
On any given day, Immigration and Customs Enforcement keeps at least 34,000 immigrants locked up while they wait for their cases to be heard in immigration court. Many of these detainees are incarcerated not because they are dangerous or likely to skip their court dates, but because ICE must meet an arbitrary quota set by Congress. This quota, which is often referred to as the “detention-bed mandate,” is a disgrace and should be eliminated.
So how exactly is he going to do this not just on day one, but “in the first hour?”
Let me state the obvious — he can’t, and he won’t.
The best might he able to do is adopt a zero tolerance policy for anyone who commits a crime included in the “aggravated felony” list, but exactly how many more deportations that might achieve beyond what Obama is already accomplishing is highly questionable. I suspect it might make no difference at all, because even if he applied it to the 36,000 who were “released” pending their removal hearing — only about 12,000 of those would be eligible based on the list above -- or he might reverse the ICE policy de-prioritizing immigration enforcement against the 68,000 who mostly don’t fit the list at all but he still doesn’t have any additional detention space for them. I seriously doubt he’d even reach Obama’s 2012 peak of 400,000 deportations.
If he does just that, only what Obama has already been doing, I really don’t think he’s gonna get any credit for from the alt-right because Obama certainly hasn’t.
Another thing that Trump and his screaming horde clearly doesn’t understand fully is that for many people, particular those who are poor or working class unlike his model wife, there is no practical path to legal immigration that they can afford. If you want to come to America to work legally there are only three possible visas you can get. H1B for people with specialty skills and higher education, the H2A Visa for temporary agricultural workers and the H2B Visa for non-agricultural seasonal workers. The problem is that potential workers, people who want to come to U.S. legally to begin a career can’t do it unless some corporation or business invites them by making a request for the visa, they simply can’t do that on their own.
Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for temporary stay, or an immigrant visa for permanent residence. Temporary worker visas are for persons who want to enter the United States for employment lasting a fixed period of time, and are not considered permanent or indefinite. Each of these visas requires the prospective employer to first file a petition with U.S. Citizenship and Immigration Services (USCIS). An approved petition is required to apply for a work visa.
If an employer doesn’t file the petition there is no visa. In addition their is a cap that limits the number of H1B (65,000 per year) Visas and H2B Visa (66,000). Certainly the cap is intended to protect American workers, but the petition already requires that the employer show they’ve already attempted to hire locally and haven’t been able to do it. These caps are inflexible and don’t respect the need for an ebb and flow in the supply and demand of qualified labor in the local pool or from elsewhere.
And guess what? Trump has used H2B Visas in order to provide workers for Mar-A-Lago in Florida.
Writer Josh Gillin said PolitiFact looked at Trump's Mar-a-Lago Club in Palm Beach and his use of the H2B visa program.
“What we have found is that the Mar-a-Lago Club actually sought about 685 of these H2B visas between 2008 and 2015,” Gillin said. “We’ll point out that this is a pretty common practice, and Trump has followed the law here.”
Trump said he used the visas because he couldn’t find qualified workers.
Or perhaps because he couldn’t find workers who were willing to get stiffed the way he did the Polish Gang and hundreds of his contractors. But then again it appears that Trump decided to skip that minor little step when it came to bringing some of his models to the U.S.
Mother Jones has just published a big report about foreign-born women who once worked for Trump Model Management and who are alleging that the modeling agency regularly broke immigration laws by getting them into the U.S. and having them do work without obtaining proper visas.
Canadian-born model Rachel Blais gave Mother Jones detailed documentation showing how she worked for Trump Model Management for a whole six months before the agency obtained a proper visa. Additionally, two models from other countries — given the pseudonyms Anna and Kate to protect their identities — told the publication that the agency never even bothered to obtain work visas for them.
“I was there illegally,” Anna said.
What’s more, two of the models claimed that Trump’s agency “encouraged them to deceive customs officials about why they were visiting the United States and told them to lie on customs forms about where they intended to live.”
Now, that’s what giant steaming bowl of hypocrisy juice right there.
If you don’t have a company putting forth a petition to sponsor you or the Visa cap has been reached you can’t legally come to America to work. Period. That’s why there’s an issue about whether Melania’s violated the Visa rules because she describes having to “go back to Slovenia every few months” but you can stay in the U.S. on a H1B or H2B Visa for up to three years without having to go back, so her claim doesn’t make sense.
In my opinion this is the crux of the legal immigration problem right here because unlike Trump at Mar-A-Lago many of these companies don’t want to bothered with this process since it can cost between $2,400-$3,000 per Visa to have an immigration lawyer process all the paper work. For example even though there isn’t any cap at all for agricultural workers when Georgia and other states cracked down on undocumented workers a couple years ago hardly any of their agricultural industry simply sought out more legal H2A visas that would have replenished their workforce, instead they turned to using prisoners.
Late last fall, Idaho state Sen. Patti Anne Lodge, R-Huston, stood in an unpicked orchard. The trees were heavy with apples, some rotting on the ground around her. The window of time to harvest was over. “The apples were just hanging frozen on the tree, a whole orchard, because they couldn’t get anybody to pick them,” said Lodge. “I wish I had taken a picture.”
“People aren’t coming across [the border] like they used to. There just isn’t the labor that there’s been before,” said Lodge. “There aren’t as many migrants that follow the work like they used to.” Lodge isn’t wrong; fewer farmworkers are crossing the border from Mexico, where nearly 70 percent of the United States’ ag workforce is from. But the reason for their absence in the orchards of her state is both less mysterious and more complicated than a shift in migrant work patterns.
Anti-immigration legislation in Idaho and many other states, particularly those emulating Arizona’s much contested S.B. 1070, has directly influenced the decrease in workers—workers the American agricultural system has depended on for years.
…
Beyond the health and safety risks prisoners face in the fields, the trend is a crystal-clear echo of an ugly chapter of American history that ended less than a century ago. The convict lease system was the post–Civil War response to another labor shortage: the end of slavery. Racist laws targeted and imprisoned freed black Americans, whose labor was then provided, for free, to private entities like—you guessed it—plantations. This thinly veiled system of slavery didn’t fully end until 1928.
When the Georgia Department of Corrections sent prisoners to harvest Vidalia onions in 2012 following the introduction of the state’s anti-immigration law, Edward O. Dubose, the president of the NAACP Georgia State Conference, called the practice “shocking and regressive.” The racial composition of today’s massive prison population reflects laws and policies, such as those ushered in by the war on drugs, that have disproportionately affected minorities.
So basically in order to protect their bottom line and profits these companies instead of recruiting U.S. workers or using existing laws to bring over willing legal workers they are literally turning to a forced captive labor force. Functionally and practically they’re using slaves because as a matter of fact the 13th Amendment didn’t ban slavery or indentured servitude for the “duly convicted.”
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction
All of this happens because we can’t come up with a practical and reasonable immigration strategy that doesn’t treat workers as chattel to be used and discarded by our corporations — whether domestic or not, whether documented or not. I’ll be blunt, a company that can’t take care of the it’s workers, can’t pay them and treat them decently doesn’t deserve to exist.
Still those workers are going to come, illegally and without a visa they frankly can’t get on their own — or else enter using a student or tourist visa and overstay which is how 40% of the undocumented entered in the first place — because to be honest there’s no fence or wall that a shovel, a ladder, a rope and enough determination can’t ultimately defeat. When it comes to living a life in destitute poverty, under an oppressive violent regime or war torn nation — people will do just about anything for a better life. They’ll take any chance for a shot at the American life, even if that’s a life of hard backbreaking work being exploited, underpaid without healthcare or workers comp simply because of the possibility that their children’s life might — just might — be better than their own.
We know this because the 650 miles of fence we already have has forced those who attempt to traverse incredibly dangerous terrain across the southern U.S. border has resulted in thousands of them dying in the process and yet they keep coming.
During the early 1990’s, the number of border crosser deaths examined per year by the Pima County Medical Examiner in Arizona varied between 5 and 11. In the year 2010, following construction of almost 700 miles of wall and a huge increase in the number of Border Patrol agents and enforcement technology, they examined 225 human remains in the same office. I find it profoundly disturbing that most people have no idea of the scope of this crisis. These statistics are all readily available and confirmable, but you have to seek them out because the media does not cover the issue sufficiently. Since 1994, they have found over 7,000 human remains in the borderlands, the majority of these in Arizona, and this number only represents the number of bodies found! The actual number of border crosser deaths is almost certainly significantly higher though the bodies were never found.
Currently, the morgue in Tucson houses over 900 unidentified human remains of presumed border crossers. Marc Silver’s documentary film, Who is Dayani Cristal (with Gael Garcia Bernal, 2013) emphasizes the severity of the issue.
The great wall of Trump will not close all the gaps. People will still find a way over and under it, and many of them will continue to die in the process even as the conditions get more and more difficult.
In closing here’s a statement on Trump’s policies from Alisa Wellek of the Immigrant Defense Project who I contacted for a comment while putting this diary together (emphasis mine).
Stoking Americans' fears and anxieties is a classic tool that has been used to justify mass deportation and the militarization of the border. History has shown us over and over again that when we govern through fear, especially fear that paints whole communities as a threat based on race, class, or nationality, it leads to violations of human rights, dividing of communities, and decreased security. Preying on people's fears distracts us from addressing underlying issues about which people who are trying to better this country are coming up with real solutions that reflect our values.
Today, the basic unfairness of laws that impose harsh mandatory penalties on certain offenses, and of restrictions that shackle people with criminal records to their pasts and choke off their futures is widely recognized. We see that they violate values of basic justice and dignity. Politicians from both parties have rightly called for an end to the discredited “tough on crime” policies of the 1990s. However, equally deserving of the same level of scrutiny, rejection and regret are the harsh immigration laws passed in this same era that have resulted in the detention and deportation of millions of people, including greencard holders, veterans, and parents.
Every year in the United States, tens of thousands of immigrants are currently snatched from their families based on past convictions. Many of these convictions stem from these 90s-era criminal laws that led to the arrest and incarceration of mostly black and brown men. At the same time, a dramatic increase in federal criminal prosecutions of non-citizens for immigration offenses — traditionally considered a civil matter — has further swelled the number of immigrants with convictions.
Far from scaling back on immigration prosecutions or mandatory deportation, the federal government is moving in the opposite direction. The US Congress is considering a new mandatory minimum sentence for nonviolent immigration offenses. The Obama administration, and many of the presidential candidates, list immigrants with criminal histories as a top priority for deportation.
All the presidential candidates should recommit the US government to the core values of justice, dignity, and “second chances” by ending the mass criminalization and deportation policies that fall most heavily on populations of color, tearing families and communities apart.
Alisa Wellek Executive Director Immigrant Defense Project
Amen.
We certainly want to keep Americans safe, but we also need to do it in a way that protects the rights and dignity of all persons, citizen or not.