Trump Using Every Tool Available to Keep Immigration Promises

On the campaign trail, Donald Trump made a number of immigration promises: that he would “close the border”; launch a “mass deportation program”; and remove migrant criminals and gang members. As president, he’s quickly moved to keep those promises and is using every tool at his disposal — including a number that have been rarely utilized in the past. In this age of “lawfare”, it’s not much of a surprise that he is receiving pushback in the courts, but it does not appear to be slowing his agenda.

“Foreign Policy” Ground of Removal. The Washington Post reports that ICE agents arrested Badar Khan Suri, an Indian national and fellow at Georgetown University, in Northern Virginia on March 17, apparently charging him under the “foreign policy” ground of deportability at section 237(a)(4)(C)(i) of the INA.

If that sounds familiar, it’s the same removal ground DHS used to detain Mahmoud Khalil, a Syrian-born Palestinian activist and Columbia University graduate student.

As section 237(a)(4)(C) states: “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.”

On March 19, DHS spokeswoman Tricia McLaughlin tweeted:

This removability ground has only sparingly been used in the past and, in fact, there is only one precedent decision — from the Board of Immigration Appeals (BIA) in 1999 — I am aware of that interprets it.

That does not mean, however, that it isn’t valid, or that Trump’s DHS is restrained in any way from using it in either case. But as I have explained recently, you can expect that the federal courts will thoroughly parse through the handful of words in the statute and the claims lodged by the State Department against both Khalil and (now) Suri before either of them are removed, assuming they ever are.

Alien Registration and Fingerprinting Requirements. On February 25, DHS Secretary Kristi Noem announced that her department will begin enforcing criminal penalties under the INA for aliens who “willfully fail to depart the United States”, “fail to register with the federal government and be fingerprinted”, and “fail to apprise the federal government of changes to their address”.

I highlighted the criminal penalties for aliens who fail to register and be fingerprinted (in sections 262 and 266 of the INA) more than six years ago, in August 2018, and discussed the change of address requirement in section 265 of the INA a week later. Aliens who willfully fail to depart are subject to terms of imprisonment under section 243(a)(1) of the INA.

Perhaps someone at DHS has been reading my back copies, but in any event, those requirements are low-hanging fruit for any administration interested in tackling the backlog of millions of aliens unlawfully present in the United States.

Regardless, Noem’s “registration” announcement raised alarms among immigrants’ advocates, with the vice president of policy at the National Immigration Law Center telling ABC News:

Historically, we know that we have to sit up and pay attention anytime a government says it’s going to set up a registry on the basis of national origin or race or religion or any other immutable characteristic, because dramatic losses of civil liberties and civil rights are sure to follow and potentially worse.

With due respect, unauthorized status in the United States is not an “immutable characteristic”; an alien here illegally can always change that status by obtaining lawful status (if any is available) or, alternatively, by leaving the country.

“Self-deportation” in lieu of registration is plainly Noem’s goal, with McLaughlin telling Fox News:

President Trump and Secretary Noem have a clear message for those in our country illegally: leave now. If you leave now, you may have the opportunity to return and enjoy our freedom and live the American dream. … The Trump administration will enforce all our immigration laws — we will not pick and choose which laws we will enforce. We must know who is in our country for the safety and security of our homeland and all Americans.

Although those registration requirements have been a part of the law for nearly 85 years, you can still expect court challenges once DHS begins arresting scofflaw aliens and charging them criminally. There are more than 670 federal district court judges nationwide, and at least a handful of them will offer a sympathetic ear.

The Alien Enemies Act. As my colleague George Fishman has explained, the Trump administration dusted off the Alien Enemies Act (AEA), and has begun employing it to remove criminals and gang and cartel members from the United States.

If the alien registration requirements are hoary, the AEA is downright archaic, dating back to 1798 when our nascent Republic was bracing for a war with revolutionary France. It’s codified at 50 U.S.C. § 21, and reads in pertinent part:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government … all natives, citizens, denizens, or subjects of the hostile nation or government [at least 14 years old and not having become naturalized U.S. citizens] … shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

Trump contends it’s appropriate for him to invoke the AEA to deal with the Venezuelan transnational criminal organization Tren de Aragua (TdA), explaining in a March 15 presidential proclamation (PP):

TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.

When the administration began flying suspected TdA members to El Salvador under the AEA on March 15, Judge James E. Boasberg of the U.S. District Court for the District of Columbia issued a temporary restraining order (TRO) blocking the move and ordering the government to turn the planes around and return those aliens to the United States.

The timing of that order and the arrival of those aliens in El Salvador is in question, with Judge Boasberg demanding detailed records on the departures. For its part, DOJ is arguing that the court lacks authority to question those removals under the AEA and is seeking further review from the Court of Appeals for the D.C. circuit.

I’ll skip the kerfuffle between President Trump and Chief Justice John Roberts over the case and Judge Boasberg’s orders and simply note that the use of novel authorities outside the INA to remove aliens is bound to trigger legal challenges. Moreover, it’s axiomatic that the federal judiciary likes to move slowly and prefers to keep matters in stasis while it weighs the parties’ arguments.

That said, the legality of such “nationwide” or “universal” injunctions in immigration cases was a sharp point of contention between the first Trump administration and the judicial branch, as I observed in November 2018, with Justice Clarence Thomas complaining in his concurrence in Trump v. Hawaii (the so-called “travel ban” case) that:

District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system — preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.

Justice Thomas’s plaints have subsequently been echoed by Justices Alito, Gorsuch, and Kavanaugh, as Kim Strassel noted in the Wall Street Journal on March 19, and once you have four justices singing the same tune, it’s not that hard to convince a critical fifth one to join the chorus for a majority.

The Roberts court has signaled an interest in staying out of politically charged immigration disputes, so don’t be surprised if the justices soon place boundaries around lower courts’ authority to restrict DHS’s ability to remove aliens who are not parties to individual cases.

If it doesn’t, soon the Court’s entire bandwidth will be consumed with emergency motions and hotly contested allegations of executive overreach — great political theater, but hardly healthy for our legal system.

President Trump is using every shot in his executive-branch locker to keep his promises to secure the border and remove unauthorized aliens from the United States. Advocates and judges have started pushing back even as the White House keeps ramping up its efforts. Stay tuned as the irresistible force of nature meets the immovable objects in black robes.