Enforcing Trump’s immigration plan will be harder than he thinks

Trump inherited a number of immigration enforcement problems from the Obama administration, the most serious of which was an immigration court backlog that has prevented him from using removal proceedings to reduce the size of the undocumented alien population.  

{mosads}His solution seems to be to heed the advice of Mitt Romney, who said, when asked about reducing the population of undocumented aliens during a debate in 2012:

“The answer is self-deportation, which is people decide they can do better by going home because they can’t find work here because they don’t have legal documentation to allow them to work here.”

But Trump is using harboring prosecutions to discourage people from helping undocumented aliens to remain here illegally in addition to enforcing employer sanctions to discourage employers from giving them jobs.  

Neither is likely to be successful.

The backlog.

As of March, 2018, there were approximately 350 immigration judges, and the immigration court had 692,298 pending deportation cases.

Most of the pending cases are for undocumented aliens who were taken into custody by Customs and Border Protection (CBP) near the border after making an entry without inspection or at a Port of Entry when they requested an asylum hearing.  

Deporting the aliens in this group who do not establish eligibility for relief from deportation will prevent them from increasing the undocumented alien population, but it won’t reduce the size of that population.  That requires removal of aliens who are living in the United States, i.e., interior enforcement, which is handled by Immigration and Customs Enforcement (ICE).

But the backlog has made it difficult to get removal hearings for the undocumented aliens ICE arrests, which has resulted in fewer and fewer arrests.

ICE deportations have dropped by almost 50 percent in the last five years, and Trump has not been able to reverse this trend.  

Harboring prosecutions will help, but the cost may be too high.

To convict someone of harboring, the government must establish that the defendant concealed, harbored, or shielded an undocumented alien from detection.

Punishments range from a fine and/or up to a year in prison to a death sentence.  

Harboring prosecutions can make landlords, employers, humanitarian organizations, etc., afraid to become involved with undocumented aliens.  According to the ACLU, even church congregations may be vulnerable.  

But this could have dire political consequences if American citizens and Lawful Permanent Residents who were just trying to be good Samaritans are incarcerated.

Employer sanctions.

The Immigration Reform and Control Act of 1986  established employer sanctions to eliminate the “job magnet.”  This might have worked if the sanction provisions had been implemented effectively, but that didn’t happen.  

Nevertheless, Trump has ramped up arrests of business owners who employ aliens that have not been authorized to work in the United States.  
Apparently, no one has told him that he doesn’t have the resources to support a surge in employer sanction cases.  

Employers facing employer sanction charges have a statutory right to a hearing before an Administrative Law Judge (ALJ), and according to footnote number 124 in GAO’s June 2017 report on immigration courts, there was only one ALJ for these cases when the report was prepared.  The number was increased to three before the end of the year, which still was grossly inadequate.

According to Census Bureau Statistics, there were 5,707,941 employers in the United States in 2012, and that number surely has increased in the last six years.  

Apparently, James McHenry was one of the ALJs.  He is the director of the Executive Office for Immigration Review (EOIR) now.

EOIR manages the immigration judges who are struggling with the backlog crisis.  It also manages the Office of the Chief Administrative Hearing Officer (OCAHO), which is in charge of the ALJs who adjudicate employer sanction cases at the trial level and the appellate judges who review appeals from the ALJ decisions.

OCAHO ALJs handle three types of cases:

1. Knowingly hiring unauthorized aliens or failing to comply with employment verification requirements;
2. Immigration-related unfair employment practices; and
3. Immigration-related document fraud. 

Proceedings before OCAHO begin when ICE discovers apparent violations during a worksite investigation and issues a Notice of Intent to Fine to the employer, which describes alleged violations and proposed fines. The employer must choose either to pay the fine or to request a hearing. 

Previous administrations apparently were not interested in enforcing employer sanctions.  There were very few cases before Trump became the president.

OCAHO completed 77 cases in in FY 2015 and 56 in FY 2016.

And it wasn’t much better in previous years.  

Conclusion.

If Trump doesn’t find more promising enforcement measures, historians familiar with Macbeth may say that his “hour upon the stage” just amounted to “sound and fury, signifying nothing.”

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.