President Obama left office with a mixed legacy on immigration. Because his administration deported record numbers of undocumented immigrants, immigration advocates often derided him as “Deporter-In-Chief.”
And yet Donald Trump campaigned on a promise to further restrict immigration – both legal and undocumented – and to deport even more, calling Obama “weak” on immigration.
So, just over 100 days into the Trump administration, how do Trump’s immigration policies differ from Obama’s? Preliminary evidence suggests that, to get a thoughtful answer, we should look not just at how many, but at what kind of person is being deported.
1. What has been the general approach to immigration policy by Obama and Trump?
Trump has aggressively moved to restrict immigration, using racially charged rhetoric, ratcheting up penalties for undocumented immigrants, and attempting to ban “undesirable” groups from entering the United States.
Obama mixed restrictions and benefits. Obama did indeed deport a record number of undocumented immigrants, totaling more than 5 million after his eight years in office. But he also set up the Deferred Action for Childhood Arrivals (“DACA”) program, which stopped deportations for undocumented minors brought to the country by their parents.
2. How many people has Trump deported in his first few months in office?
The Washington Post’s Maria Sacchetti found that ICE arrested 21,362 immigrants since Trump took office; immigration arrests are up more than 32.6 percent from the same period last year. However, deportations are slightly lower, down by 1.2 percent.
Why the difference? Arrests and deportations aren’t simultaneous. Before immigrants can be deported, their cases must wind through the sprawling immigration bureaucracy. That bureaucracy is severely backlogged, with more than 530,000 cases pending. Some immigration courts are scheduling hearings six years from now. Once arrested, an immigrant may not show up as a deportation statistic for months or years.
3. Who is being deported?
Trump and Obama have targeted very different groups for deportation. In 2010, the Obama administration instructed immigration authorities to focus on violent criminals and those posing national security threats. He refined his directives in November 2014, listing as his deportation priorities: members of gangs; those convicted of felonies or aggravated felonies; and those suspected of or engaged in terrorist or espionage activity.
The other high deportation priority was immigrants apprehended while trying to enter the United States, who didn’t yet have long-term ties in American communities.
While campaigning, Trump famously said that Mexico was sending “rapists,” criminals and drug couriers to the United States and vowed to get rid of them. And that’s what his Jan. 25, 2017, executive order, which outlines enforcement in the U.S. interior, ostensibly does in its Section 5 that prioritizes the arrest of criminals and terrorists.
But the rest of the order’s broad language vastly expands the groups prioritized for deportation. For instance, it adds immigrants who “have committed acts that constitute a chargeable criminal offense” – which is broader than those who have actually been convicted of a crime. Another includes those who improperly use public benefits, which could include letting your children get public-school lunches. The sweeping language means many more immigrants are considered deportation priorities.
4. What do the statistics show about deportation/removal priorities?
The Migration Policy Institute, a nonpartisan think tank, reported that under Obama:
85 percent of all removals and returns during fiscal year 2016 were of noncitizens who had recently crossed the U.S. border unlawfully. Of the remainder, who were removed from the U.S. interior, more than 90 percent had been convicted of what DHS defines as serious crimes.
From two and a half months of the Trump administration’s enforcement, evidence is mixed on which immigrants Trump is arresting. The Washington Post found that the Trump administration has doubled arrests of non-criminal immigrants over the same period last year. However, most of the apprehended continue to be convicted criminals.
Further, The Post found, on more closely examining 675 out of 27,362 apprehensions, that “about half” either had no criminal convictions or were guilty of a traffic violation. That article, though, does not make clear how the 675 cases were obtained and whether it was a random sample (i.e., whether the 675 were representative of the rest of the cases).
Obama also let many undocumented immigrants stay, even if they were apprehended: long-term, non-criminal immigrants and DACA recipients. The DACA program registered more than 750,000 qualified young people, giving them temporary work authorization (although not green cards or citizenship). Trump has put that program in limbo.
5. Who is a priority for removal/deportation now?
Trump press secretary Sean Spicer says that the “shackles” have come “off” immigration enforcement (ICE) agents. Newly emboldened immigration enforcement personnel are arresting immigrants, both the White House and news organizations are reporting, whether criminally convicted or not.
Can the “dreamers” – the undocumented young people brought here as children by their parents – stay? That’s not yet clear. Although Trump has made sympathetic statements about the dreamers, referring to them as “these incredible kids” and saying that they should “rest easy” because they are not targets, he has not yet set out his policy for treating them. And other parts of the administration have issued contradictory statements.
On March 9, 2017, the Immigration and Customs Enforcement’s official Twitter feed said “DACA is not a protected legal status, but active DACA recipients are typically a lower level of enforcement priority.” Two tweets followed, saying that criminal activity can get your DACA status revoked and, “Deferred action does not prevent DHS from executing a removal order.” Indeed, under Trump, some dreamers who committed crimes or are affiliated with gangs have also been deported.
To add to the confusion, someone could qualify for DACA even with a criminal conviction; it depends on the severity and nature of the crime. For instance, Juan Manuel Montes-Bojorquez, who qualified for DACA even with a shoplifting and three convictions for driving without a license, has been expelled. (Immigration authorities argued he violated his DACA status by taking a trip to Mexico earlier.) Montes’s lawyers are challenging his expulsion.
On April 19, Attorney General Jeff Sessions said that DACA beneficiaries were not being targeted for deportation, but added, “Everybody in the country illegally is subject to being deported, so people come here and they stay here a few years and somehow they think they are not subject to being deported — well, they are.”
And on April 28, 2017, a spokeswoman for Homeland Secretary John F. Kelly said, “ICE will no longer exempt classes or categories of removable aliens from potential enforcement.” So which is it?
Congressional staff have groused that Trump’s DHS has not responded quickly to data requests about recent apprehension and deportation statistics. So far, the administration’s enforcement and messaging have spread anger, uncertainty and fear through immigrant communities.
But it’s only been three months. We need more data to assess Trump’s enforcement priorities.
Anna O. Law is the Herbert Kurz Chair in Constitutional Rights at the City University of New York, Brooklyn College and author of The Immigration Battle in American Courts (Cambridge 2010). Follow her on Twitter at @unlawfulentries.