Published by: The Hartford Business Journal
By Robert G. Brody and Fintan S. Lalor
President Trump started his second term with a bang, immediately cracking down on illegal immigration just as he promised throughout his campaign trail. The initial enforcement efforts, discussed in more detail here, had no shortage of drama, complete with publicized raids and celebrity cameos. Despite the high-profile and dramatic start to the crackdown, actual arrest numbers have since dwindled. While there has been a steep decline in border crossings, the arrest, deportation, and detainment figures continue to fall short of Administration quotas.
According to reports, the results have disappointed the President. Consequently, the two highest ranking Immigration and Customs Enforcement (ICE) officials were reassigned to different roles. In recent weeks, the Trump Administration has introduced various strategies designed to enhance enforcement efforts. However, shortages in staffing and detention facilities, paired with ongoing legal challenges, cast doubt on whether President Trump will ever be able to achieve his ambitious deportation targets. This article offers an update based on the objective numbers made available to the public.
Arrests by the Numbers
Data from the Department of Homeland Security suggests ICE has made roughly 33,000 arrests of undocumented individuals since President Trump took office for the second time. Similarly, data shows that there are roughly 48,000 immigrants in ICE detention centers. The Administration has repeatedly stated their focus is targeting the “worst-first” (undocumented individuals with a criminal record). The results confirm this as about 70% of the arrested individuals have been convicted of crimes or are facing criminal charges. Current figures indicate the number of arrests have fallen well short of the Trump Administration’s goal of 1200-1500 arrests per day. Also of note, deportation statistics are rarely offered and appear much lower than expected. The exact number of deportations at this point remains unclear.
Hurdles the Administration has Faced
Unsurprisingly, the Trump Administration has encountered numerous obstacles in their efforts to achieve their ambitious deportation objectives. First, over 100 immigration government officials (including immigration judges and administrative staff) have either been terminated or have voluntarily departed since the start of President Trump’s second term. More than half of those individuals are leaving their roles pursuant to the Trump Administration’s deferred resignation program, which offered full pay and benefits until September to government employees who voluntarily resign. Additionally, due to the Administration’s ambitious goals, many ICE officers have been working 6 or even 7 days a week, with some being asked to take on extra shifts and delay vacations. Such a staffing shortage is especially problematic when the Administration is already struggling with a backlog of roughly 3.7 million cases which are increasing daily.
Second, the federal facilities used to detain immigrants are at near capacity. In fact, many of the immigrants taken into custody have been subsequently released due to a lack of space. The Trump administration has been seeking additional detention spaces, including Guantanamo Bay, and the revival of a major detention center in New Jersey to mitigate space constraints.
Third, and perhaps most significantly, the Trump Administration’s immigration enforcement efforts have been met with various legal challenges. In his first day in office for his second term, President Trump signed an Executive Order aimed at denying citizenship to children born to immigrants temporarily or illegally in the U.S., otherwise known as birthright citizenship. Shortly thereafter, a federal judge issued a temporary restraining order on President Trump’s action, labeling the directive “blatantly unconstitutional.” Additionally, as discussed in more detail here, the legality of “collateral arrests,” where ICE arrests other undocumented individuals who are in the same location as someone for whom they have a proper warrant, is ripe for legal challenges. Normally, such arrests only follow probable cause, and we anticipate legal challenges will be filed over this issue. Overall, the Administration’s bold immigration enforcement strategy is facing numerous legal constraints that may limit their results.
New Strategies
Despite encountering significant hurdles, the Trump Administration is not backing down and continues to introduce new strategies to push forward with their immigration crackdown. On February 25, the Department of Homeland Security (DHS) announced an “Alien Registration Requirement,” which requires certain undocumented individuals to register online with the U.S. government and to carry proof of registration with them at all times. The registration requirement was first enacted during World War II but has been dormant for decades. President Trump is now bringing the requirement back to life by implementing an online portal for undocumented individuals to register with the government. Those who are required to register but fail to do so are subject to criminal and civil penalties. The registration requirement will put many undocumented individuals in a vulnerable position, as they will have to decide between registering and alerting the government to their undocumented status or not registering and being subject to criminal penalties if caught.
In addition to the registration requirement, the Trump Administration recently shifted their focus to undocumented children who entered the country without a parent or legal guardian. While the exact timing of the operation is unclear, ICE agents would be tasked with seeking out unaccompanied minors who entered the country alone and do not have scheduled immigration hearings. The precise details of the approach are not yet known; however, the shift demonstrates the Administration’s continual push to refine its deportation strategies.
Employer Takeaways
Although the Trump Administration has not quite been able to achieve its ambitious enforcement quotas, employers should take this opportunity to ensure their processes are compliant with the I-9 requirements. The Administration has shown a willingness to adapt their tactics to reach their desired goal, leaving no undocumented individual safe from prosecution. Notably, however, with the Administration’s emphasis being on the “worst-first,” and now reportedly unaccompanied migrant children, the primary focus is not yet on employers/employees.
Employers should take this opportunity to audit their I-9 Forms and consult competent legal counsel to ensure they are in compliance and they know their rights. Among other issues, employers should learn their rights if ICE knocks on their door. Employers have many options on how to deal with ICE, but only informed employers will be able to take advantage of these choices. Finally, employers should affirmatively decide if they want to educate their employees on the immigration laws in an attempt to avoid properly documented workers from refusing to come to work out of fear that ICE can arrest them or deport them without reason.
Brody and Associates regularly advises its clients on employment verification issues, the use of E-Verify, and all matters related to I-9s. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
