An immigration law expert warned that Donald Trump cannot carry out his sweeping plans to deport millions of people without breaking the law.
The president-elect has pledged to strengthen border security and carry out mass deportations, which would present massive logistical and financial challenges, and John Sandweg, former acting director of U.S. Immigration and Customs Enforcement under Barack Obama, said the campaign promise would also pose legal obstacles.
"Even setting aside his resource issues – not only do you need the officers, detention beds, removal flights, those kind of issues – the biggest problem, the biggest impediment of carrying this out is the immigration courts," said Sandweg, now a partner of Nixon Peabody leading the Cross-Border Risks team. "The Supreme Court has long said that before individuals are deported, they're entitled to a full and fair hearing. That means a hearing before an immigration judge where they can support defenses to deportation. Sometimes those defenses are, 'I am a U.S. citizen,' other times there are certain benefits under immigration law that allow some migrants to stay in this country, of course, asylum being one of the biggest ones. The problem is, those courts are tremendously backlogged. Congress has never really funded the courts to keep up with the volume."
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"So now Stephen Miller and others are looking at the situation," Sandweg continued. "They know that is the problem. Really quickly, during the last administration, there was no lack of political will to deport as many people as possible, it's not like this is an entirely new concept, yet the Trump administration's numbers were below those of the Obama administration when it came to deportations. The reason why was backlogs in the immigration court."
"So the president-elect will need to push the envelope, in terms of, he is going to try through executive orders and other regulations and things like that to strip migrants of these rights to due process," Sandweg added. "We saw before at the border, and now I'm confident we will see it in the interior of the U.S. There will, of course be lawsuits, and it's a different court today, but ultimately testing the limits on how far he can go. But really, look, there is just zero chance he can get anywhere close to where he wants to go, unless he pushes the envelope on due process to its absolute bare minimum."
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