Repolished from MINNPOST

One size does not fit all when it comes to enacting deportation policy

by Robert Aronson, MinnPost
January 10, 2025

A cornerstone of the Trump campaign is a mass deportation effort to expel “illegal aliens” from the United States, undertaken under a claim that the undocumented fall within the Alien Enemies Act of 1798. Should this assertion be administratively implemented and judicially upheld, the government will have substantially greater authority to expel a broader range of foreign nationals without judicial or administrative review, create a vastly expanded program of immediate expulsion bereft of traditional due process protections and eliminate a balancing act between the initial illegal entry and other mitigating factors. This piece parses through these various humanitarian categories and makes some initial prognostications whether these programs will continue to remain in existence and, if so, under what terms and conditions.

Thus far, we are seeing five developments that significantly impact impending deportation policies: 1) the incoming administration has made an avowed commitment to deport “illegal aliens”; 2) the incoming president enjoys an immense concentration of power given the composition of the Congress and the Supreme Court, so he is expected to move quite quickly on the MAGA agenda; 3) the costs, logistics and economic disruption of mass deportation will be enormous and could create boundaries to a radically expanded deportation policy, although ideological fervor will go a long way in pursuing a more activist removal agenda; 4) his nominations to cabinet and senior advisory positions create a very muscular deportation team; 5) but contrary to the push for “expedited removal,” the legal and advocacy communities will challenge any non-judicial mass removal movement, intent on ensuring that due process safeguards remain in place in removal proceedings.

But all this begs the identification of those “illegal aliens” who will be subject to draconian deportation policies. This will not be a “one size fits all” situation. Rather, U.S. humanitarian immigration programs need to be broken down into the following categories:

1. Refugees. Here, there is an organized, modulated program undertaken pursuant to an annual Presidential Determination on the capacity of this country to provide protection to foreign nationals fleeing persecution in their home countries. Such individuals are carefully vetted for security and health considerations. The program is evolving into a public-private partnership in which civil society is providing increased financial and other support measures to those in need. But the program is vulnerable both to substantially reduced numerical quotas set under the annual Presidential order and major cutbacks to federal benefits programs.
2. Asylum. A related concept to refugee admissions is asylum, which has been created under statutory enactment and provides a foreign national already on the territory of the United States the right to seek protection from persecution in his/her home country. It is imperative to break down this class of applicants into two component parts:

• a. CBP1 asylum seekers. These are foreign nationals who registered through a program of the U.S. Customs and Border Protection (CBP) that allows them authorized entry along the southwest border for the explicit purpose of filing for asylum. The important point here to note is that their initial entry to this country was authorized and an initial determination was made that they have a “credible fear” of persecution, thereby clearing the initial hurdle in an asylum case. But the ultimate adjudication of their asylum case is currently taking several years. In judging the ongoing viability of this CBP1 asylum program, the administration may challenge what it considers to be a lax “credible fear” standard. However, on balance, there has been fidelity to the law in the asylum applicant’s initial entry and, as such, there is a good chance that this program will be preserved, at least for those already in the United States.
• b. Entry Without Inspection (EWI). In this instance, a foreign national has skirted the authorized entry process by surreptitiously entering the United States and, once here, filing an asylum application. There is an initial “credible fear” determination that historically has overridden the initial act of unlawful entry, although final asylum adjudications are currently taking 5-8 years. But the unlawful initial entry has been highlighted by the incoming administration as grounds for removal that may not be overridden by the subsequent action of filing for asylum. Even if an asylum claim is allowed to proceed since it is a statutorily created right, the incoming administration has greater latitude to revoke interim benefits such as employment authorization and/or to create substantially more stringent adjudication standards for asylum approval.

3. EWI or overstays who have never sought asylum or other forms of immigration status. In many instances, the undocumented have either entered without authorization or overstayed their term of legal status. As a realistic matter, they can oftentimes stay here undetected for years, thereby establishing roots in the community and creating families in this country. But they lack authorization to stay and as such, even under current law, they are subject to removal. What is unclear, though, is the degree to which they will have the right to a fair and impartial hearing to determine if there are grounds for relief or whether there are equities that warrant relief. There is currently also the open question on the degree to which the incoming administration will aggressively seek out those without authorization, such as workplace raids, profiling of economic sectors, military/quasi-military action, expanded detention facilities and “expedited removal” to avoid the time and expense of an administrative proceeding.
4. Deferred Action for Childhood Arrivals (DACA or, as it is more popularly known, “Dreamers”). This is an initiative that has long been in limbo, aimed at providing permanent resident status to children of parents who came without authorization to the United States. While these children came without authorization, they did not choose to come to the U.S., have spent virtually their whole lives in this country, and have developed equities that justify their attainment of lawful status. At present, the DACA program provides protection to around 800,000 individuals. During Trump 1.0, the Supreme Court denied the initiative to end DACA under a procedural assertion that the termination order failed to provide a “reasoned explanation for its action” of abolishing the program. It is definitely open to question whether the current court would reach a similar outcome and, presumably, the incoming Administration now has a roadmap on how to craft an order terminating DACA, should it so desire.
5. Humanitarian Parole. This is a vehicle that provides entry permission to classes of foreign nationals who are at risk of persecution and extreme harm in their home countries. This legal doctrine was used on behalf of Afghans and Ukrainians in the aftermath of the disruptions in those countries and is currently used to protect nationals in selected situations. Initial indications are that this form of relief will be either abrogated or significantly curtailed, unless there are significant foreign policy benefits.
6. Temporary Protected Status (TPS). This provides protection parsed out in renewable periods ranging from 6-18 months to foreign nationals already in the United States but who would face severe harm in their home country owing to war, environmental disaster, or other extraordinary circumstances. At present, TPS is available to foreign nationals from 16 countries. In all likelihood, many of these country programs will not be extended.
7. Central American Minors Program (CAM). This is a program allowing children living in designated failed states to reunite with parents already in the United States. While Trump 1.0 was widely excoriated for its family separation policies, here the child is already living abroad and there may be less popular pressure to maintain this program.
8. Child Protective Measures. There are various programs to provide relief to either unaccompanied childhood arrivals or children who have been abandoned, neglected, or abused by a parent. In such cases and pursuant to a judicial determination in juvenile or family court of the need for state intervention to provide protection, a qualifying child can seek lawful immigration status as a humanitarian effort. There has been no pronouncement thus far on the fate of these programs, although the child detention policies implemented during Trump 1.0 were hugely unpopular and there may be a desire to avoid the negative publicity that was previously experienced.

A central issue that will be played out during this forthcoming period of time is whether the initial act of illegal entry is an unforgivable sin that justifies an override to time-honored options to subsequently seek relief vs. the degree to which the legal and advocacy communities as well as the public at-large will countenance a massive, streamlined removal program devoid of administrative and judicial safeguards and accept the societal, community, and economic disruptions that a broad-based deportation policy would create. It also remains to be seen whether an expanded removal policy will ignore the nuanced sub-categories appearing above or opt for a unitary, blanket approach of expulsion for those seeking safety and security in this country.

Robert Aronson is a past chair of HIAS, the agency of the American Jewish community providing services globally of safety and protection to refugees and others fleeing persecution.

This article first appeared on MinnPost and is republished here under a Creative Commons license.