President Trump’s Immigration Enforcement 2.0
President Trump’s Immigration Enforcement 2.0 by Kevin R. Johnson
In his first term, Donald Trump aggressively pursued immigration enforcement like no other modern President. During the 2024 presidential campaign, Trump doubled down on his first term’s tough–on-immigrant rhetoric and policy proposals. He made blatantly false claims about Haitian migrants eating pets and complained that immigrants were “poisoning the blood of our country.” Last but not least, Trump called for mass deportations like nothing the nation has ever seen.
Here are the five areas in which the second term of Donald Trump will likely see changes in U.S. immigration policy. All of the changes could be subject to legal challenge.
Mass Deportation
Without elaborating on the details, Trump promised a mass deportation campaign to remove the approximately eleven million undocumented immigrants from the United States. He may try to achieve mass deportations in several ways.
Trump has stated that the Alien Enemies Act of 1798 might justify mass removals. Designed for use in war-time, that law was used to detain Germans, Japanese, and Italians during world wars. The United States is not at war. However, President-Elect Trump has referred to undocumented immigrants as “invaders” and declared that the nation is being subject to an invasion.
President Trump also has pointed to President Eisenhower’s Operation Wetback in 1954 as a model for his mass deportation campaign. Led by a U.S. army general, the military style operation resulted in the removal of roughly one million persons of Mexican ancestry, U.S. citizens as well as immigrants. Use of the military in the border region, or in the interior of the country, would raise a number of possible legal challenges.
As he proposed previously, President Trump could expand expedited removal — removal of immigrants without due process authorized by 1996 immigration reforms — to all undocumented immigrants apprehended in the United States no matter how long they had been here. Expedited removal historically has been limited to noncitizens within the country for less than 14 days who were apprehended within 100 miles of the border. Removal of long-term residents raises serious due process questions, as the life and liberty interests at stake in removal cases are high. In addition, it is unclear how people in the interior of the country would be designated for expedited removal, with civil rights concerns lurking in the background
Border Enforcement
Even though the immigration enforcement benefits are questionable, President Trump has long championed building a wall along the U.S./Mexico border. His first term saw the beginning of the construction of the wall. President Biden put that massive project on hold. Expect wall construction to resume with much fanfare in President Trump’s second term
In his first term, President Trump engaged in creative efforts to close the U.S./Mexico border. Those efforts could be models for the second term. His Remain in Mexico policy required asylum applicants at the border to wait in Mexico while their claims were being decided. President Biden lifted the policy. During the COVID-19 pandemic, the Trump administration used an obscure public health law, Title 42, to close the border ostensibly to combat the spread of the virus. It took time but President Biden lifted the order.
Interior Enforcement
The first Trump administration aggressively pursued enforcement of the immigration laws in the interior of the United States. Discussed above, expanded expedited removal is one way of expanding interior enforcement.
Expect the return of workplace raids as well as enforcement operations in public places, such as convenience stores and state courthouses. Under President Trump, Immigration and Customs Enforcement apprehensions of noncitizens in state courthouses provoked a letter of protest from the Chief Justice of California to the U.S. Attorney General and Secretary of the Department of Homeland Security.
As the Trump administration did in his first term, the incoming administration likely will seek the assistance of state and local law enforcement in immigration enforcement. Under Immigration and Nationality Act Section 287(g), state and local governments can enter into agreements authorizing their cooperation with federal immigration enforcement. Jurisdictions in some states, Arizona, for example, may be eager to enter into such agreements. Those in California are unlikely to consider 287(g) agreements.
The new Trump administration may bring challenges to laws declaring state and local governments to be sanctuaries for immigrants and refuse to fully cooperate with federal immigration enforcement authorities. However, the first Trump administration lost lawsuits challenging sanctuary laws and courts halted federal efforts to withhold federal monies to state and local agencies that did not cooperate with federal immigration enforcement
Limit Legal Immigration
The Trump administration will likely seek to limit legal immigration. The first Trump administration sought to limit family immigration, the cornerstone of the U.S. immigration laws, denigrating it as “chain migration.” In his first term, President Trump supported legislation that would have reduced legal immigration from roughly one million a year to half that.
To restrict immigration without changes to the U.S immigration laws, expect the Trump administration to tighten application of visa requirements and engage in closer review of visa applications, including those of international students, business visitors, and tourists. This all occurred during Trump’s first term.
The first Trump administration also tightened the public charge rule, which allows the exclusion from the country of persons likely to become a public charge and the removal of noncitizens who receive public benefits. Trump’s proposed public charge rule was abandoned by the Biden administration. Expect the proposed public charge rule from Trump’s first term to be brought back after his inauguration in January.
Refugees and Asylum
President Trump will likely reduce the annual allocation of refugee admissions, which President Biden had increased from the low levels of the first Trump term. Trump also is likely to appoint an Attorney General who restricts asylum eligibility and prioritizes the removal of immigrants.
Conclusion
During the campaign, Donald Trump regularly talked about immigration enforcement. Although he was sparse on the details, his first term offers an idea of the types of policies that he might pursue. Some states may resist but, whatever happens, the nation is likely to experience a sea change in immigration enforcement in the second term of Donald Trump.
Kevin R. Johnson is Mabie/Apallas Professor of Public Interest Law and Chicanx Studies, University of California, Davis School of Law