Why Trump's Immigration Policy Is a Legal Mess

Experts explain that the administration appears to have overlooked several crucial details

The Trump administration's approach to immigration reform "is deeply worrisome and really does promise a number of constitutional problems down the line." Credit: Xinhua / eyevine/Redux

On Tuesday, Secretary of Homeland Security John Kelly released a pair of memos detailing his plans to transform Trump's executive orders on immigration into agency policy. The memos don't tell us much the orders didn't already – and that will remain mostly true until the details are published in the federal register – but experts are already poring over them looking for ways they could be challenged in court.

Unsurprisingly, there are several crucial details that the administration appears to have overlooked.

"The overall approach is deeply worrisome and really does promise a number of constitutional problems down the line," says Omar Jadwat, director of the ACLU's Immigrants' Rights Project. "We've already shown that the courts and the public can stand up to Donald Trump when he attempts these kinds of unconstitutional actions, and I think both the courts and the public will be there to stop him again."

In interviews with Rolling Stone, Jadwat and Camille Mackler, director of legal initiatives for the New York Immigration Coalition, flagged several potential legal problems with Trump's immigration policy.

It would impede access to a lawyer
What the memo says: Any immigrants arriving from a contiguous country – Mexico or Canada – can be returned to that country, regardless of where they're originally from, "pending the outcome of removal proceedings."
What an expert says: This is a due process issue – and due process is a right guaranteed under the Fifth Amendment. "The Supreme Court has held that you're entitled to a lawyer in your immigration court proceedings. ... How are you going to ensure that the due process protections of immigration proceedings are upheld if you're forcing somebody to be in a foreign country, appearing via video?" Mackler says. "Just as a practical matter, how is a lawyer supposed to represent somebody when they are that far away?"

It would lead to more quick deportations without a hearing
What the memo says: DHS plans to make any undocumented (or improperly documented) immigrant eligible for "expedited removal" – swift deportation without any kind of hearing – within two years of his or her arrival in the U.S. In the past, only immigrants apprehended within 100 miles of the border and 14 days of their arrival were eligible. (The new rules will preserve exceptions for unaccompanied minors and political asylees.)
What an expert says: This is another potential Fifth Amendment violation. "Expedited removal is a big due process problem," Jadwat says. "The notion that you could basically deport somebody and then give them a hearing later about whether you should have deported them seems totally contrary to any basic notion of even logic."

It would bring back a legally problematic Bush-era deportation program
What the memo says:
Kelly calls for the reinstatement of Secure Communities, a deportation program created by George W. Bush that used local and state law enforcement as a kind of dragnet to detain non-citizens. (Obama eventually replaced it with the Priorities Enforcement Program, which prioritized more serious criminals – like threats to national security, gang members and convicted felons – for deportation.)
What an expert says: The Obama administration switched to the Priorities Enforcement Program in large part because "the government was consistently losing in court, and courts were repeatedly disapproving of the way the federal government was using detainers," Jadwat says. "There's a big footnote in [the DHS memo ending Secure Communities] that basically explains: Here are a bunch of the cases that have gone against us, which is a big part of the reason we're changing from S Com to PEP."

It could violate immigrants' privacy rights
What the memo says: Kelly calls for the creation an office that would provide the victims of crimes perpetrated by undocumented immigrants with information about the offender's "immigration status and custody status, and [an assurance] that their questions and concerns regarding immigration enforcement efforts are addressed." The memo doesn't mention it, but presumably the same office would distribute the weekly list of criminal actions committed by undocumented immigrants that Trump promised in a recent executive order. (Similar lists of Jewish crimes were published in Nazi Germany.)
What an expert says: These proposals raise serious privacy concerns. "Suspending the Privacy Act rules for anyone except U.S. citizens and green card holders – that had actually been found ... to not be practicable because it's very, very hard from an agency standpoint to track when somebody becomes a green card holder or U.S. citizen for the purposes of figuring out whether the Privacy Act applied to them or not," Mackler says. "The privacy violations, and potential of [the government] exposing themselves to libel and slander or anything like that by the publication of these weekly and monthly reports [are significant]

"I don't know that this actually rises to an equal protection claim, but it does make me wonder: How are you treating these individuals differently from the victims of any other kind of crime?" she says.