On the issue of deporting aliens who committed crimes: Trump’s order does not create any new basis for deportation. The executive order relates only to those aliens who are already deportable and committed crimes. The order puts aliens charged with minor offenses in the same enforcement priority as undocumented aliens convicted of violent crimes. Not smart.
This is a very populist but ineffective and impractical step. It would have made sense if ICE had already exhausted the pool of the violent criminals and had extra available resources. But they do not. This a step backwards to the times when lazy ICE officers went after international students, while failing to find and detain violent criminals.
Under the Immigration Laws, all immigrants who violated their status or entered illegally are deportable. This has been the law for decades and remains today. Historically, there were no established priorities in enforcement. Immigration & Customs Enforcement (ICE) was initiating removal proceedings against every undocumented alien, whom they could easily find. The easiest target, for example, were students who fell out of status, because ICE has a digital system linked with schools (SEVIS) monitoring all international students’ statuses and addresses. So, as soon as a foreign student fell out of status, ICE officers would pay a visit and detain such student. This was an easy way for ICE to do their job and sort of fill their quota.
In 2009, Obama administration, began prioritizing the enforcement by instructing ICE to focus enforcement on those undocumented aliens who committed violent or serious crimes. The purpose of prioritizing was not to parole non-criminal aliens but to focus on deporting those who posed danger to society. It was a logical result of long-realized reality that there was no practical way to deport estimated 12 million undocumented aliens, and therefore, there must be some prioritization.
So, Obama administration stopped going after easy targets and focused on individuals convicted of crimes. In doing so, the administration prioritized the most violent and dangerous criminals first, putting them in removal proceedings through the US Immigration Courts.
Obama administration also attempted to streamline detaining criminal aliens and placing them in removal proceedings. This resulted in significant backlogs in Immigration Courts. Under the US constitution, even an allegedly undocumented alien allegedly convicted of a crime, has a right to due process. After all, there are numerous ways that a US citizen or permanent resident may get wrongfully detained and placed in removal proceedings. This happens frequently as a result of mistaken identity.
With the increase of enforcement, came backlogs in Immigration Courts. Now, the administration had to increase the sizes and number of Immigration Courts to be able to process the removals. But they could not, mostly because of the limited budget allocated by Congress. As such, an average removal case currently takes 2-4 years; sometimes 6-7.
Now, Trump’s executive order eliminates the difference between the violent crimes and minor offenses. Not a smart decision.
Ismail Shahtakhtinski, Esq. is the founder and principal attorney at I.S. Law Firm, PLLC, an international law firm representing individuals and organizations in a broad range of immigration matters with an emphasis on US asylum law.