On the campaign trail, Donald Trump promised to launch the “largest deportation” in American history. But actually getting that done will require billions of dollars to hire thousands of new federal workers and pay for new spaces to hold those waiting to be deported. But perhaps most daunting will be another obstacle: moving through a massive backlog in immigration court cases.
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Before a person in the U.S. is deported, U.S. law requires they have a final order of removal issued by an immigration court. Those courts have been underfunded and understaffed for years, leading to wait times for a decision that stretch for years.
Currently there are 3.6 million cases pending before immigration judges, the largest number of pending cases in the history of the American immigration system. That is a 44% increase from the 2.5 million cases pending the year before. And the problem is only getting bigger, as more people continue to be put into deportation proceedings.
Groups that support Trump’s effort to reduce immigration levels also want more immigration judges on the bench. Eric Ruark, the director of research for NumbersUSA, an organization that advocates for slashing legal immigration levels, says Congress needs to fund an expansion of the immigration courts to clear the backlog and speed up the issuance of removal orders. Congress has to “step up” and ensure that Immigration and Customs Enforcement “has the resources, that we have detention space, that we have immigration judges who can deal with these cases,” says Ruark.
The immigration courts aren’t part of the judicial branch. They’re housed within the Department of Justice and run from an obscure corner of the bureaucracy called the Executive Office for Immigration Review in the Justice. That office oversees about 700 immigration judges who decide who gets deported. Given its mandate, that office has been anemically funded for decades as Congress after Congress have deadlocked on reforming the country’s inefficient and sclerotic immigration system.
John Sandweg, who was the acting director of Immigration and Customs Enforcement during the Obama administration, says that more immigration judges and support staff would be needed if Trump wants to speed up deportations. It can take years to order someone deported and in the meantime, the person waiting for the decision gets to continue living in the U.S. “The problem is also because in the 3, 4, 5, 6 years that they’re going through the system, they’re just more deeply integrated into U.S. society and everything then becomes politically much harder for ICE to deport.”
Adding judges to address the backlog was part of the bipartisan immigration deal that President Biden and Congress were preparing to pass earlier this year before Trump came out against it. The first item listed in the Senate version of the $8 billion bill was $440 million for the hiring of immigration judges.
When Trump comes into office next month, he’ll be inheriting an agency that is already deporting people at the highest rate in a decade. Immigration officers deported 271,484 immigrants during the final fiscal year of the Biden administration, which ended on Sept. 30. That is the highest level of deportations since 2014 during the Obama administration, according to data released this month.
Trump’s team is preparing actions to further boost deportations within his first weeks in office. Republicans will control both the House and the Senate, and incoming Trump officials want Congress to act immediately to add more border agents and immigration officers.
Stephen Miller, Trump’s incoming White House deputy chief of staff, told Fox News’s Maria Bartiromo on Dec. 8 that the bill would include funding to hire more ICE officers and border agents, and pay them both better. There would also be funding to increase the number of people who can be held in detention centers, Miller said. Trump has also not ruled out deploying the military to help with his deportation surge, an expansion of the military’s role on U.S. soil that would test the limits of presidential power.
The deportation system moves faster for people held in custody. The cases of those held in detention are placed on what is called the “detained docket” and those cases are heard more quickly. That is one motivation for Trump’s advisors to want to increase the number of people in the U.S. who are arrested and held by immigration officers.
Currently ICE has funding to hold a maximum of 40,000 people in detention centers. Trump’s choice for border czar, Tom Homan, told CNN on Dec. 18 that he would need Congress to approve funding for at least 100,000 detention beds, as well as more ICE agents, to increase deportations. “We want to arrest as many people as we can that are in the country illegally,” Homan told CNN.
The Biden administration instructed immigration officers to focus deportation efforts on people who pose national security or public safety risks. Of those deported in the previous year, about 32% had criminal histories, according to ICE data. Homan says deporting those people will be his priority too, but he intends to cast a wider net, putting people into removal proceedings who ICE finds but who don’t pose an immediate threat.
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