Esther Yoo, Assistant Law Professor and Director of the Refugee & Immigration Law Clinic at the University of Hawaii Richardson School of Law joins producer/host Coralie Chun Matayoshi to discuss whether the Trump administration has the infrastructure to carry out mass deportations on Day 1, laws and tactics that can be used, which immigrant groups will be targeted first, and whether Hawaii should consider establishing itself as a sanctuary state.
Q. President-elect Trump pledged on Day1 to conduct mass deportation of immigrants but does the Trump administration have the infrastructure or capacity carry out this plan?
One point that analysts have made recently is that the federal government doesn't currently have the capacity to start deporting millions of people right away, i.e., on "Day 1." If President-elect Trump is really going to carry out mass deportation, his administration will need to build up the capacity and infrastructure to do so. One area where the government currently lacks capacity is staff to find and arrest undocumented immigrants. In 2024, the Department of Homeland Security (or “DHS”) employed less than 8,000 Enforcement and Removal Operations staff. Enforcement and Removal Operations is the agency the public typically thinks of as “ICE.” It primarily handles immigration enforcement in the “interior,” i.e., not at the border. It’s different from Border Patrol, which handles immigration enforcement primarily at the borders and employs about 20,000 agents. These staffing numbers are obviously not enough to detect and arrest millions of undocumented immigrants, especially since many of them do not have any criminal history that would help put them on ICE’s radar. Because of the natural limitations in resources, past presidents have prioritized using these limited resources to apprehend and deport noncitizens who pose either a national security risk or have serious criminal records. President-elect Trump is upending this practice again by promising to go after and deport every unauthorized immigrant, regardless of whether they are a security risk or not.
Second, the immigration court system doesn’t have the capacity to process millions of new cases. The immigration courts already have years-long backlogs.
Third, there’s the issue of detention capacity. Some – though not all – of those awaiting their deportation hearings would be subject to mandatory detention. And those who have already been ordered deported but not yet physically removed would need to be detained under the law.
Finally, the Trump administration would need to get various countries to agree to accept their deported citizens. In 2020, only 18 percent of people who had received orders of deportation were actually deported. It’s typical for a country with whom the United States does not have good diplomatic ties, such as China, Cuba, Nicaragua, and Venezuela, to resist accepting their deported citizens.
However, just because President-elect Trump does not have the capacity to carry out mass deportation on the first day, or even the first year, doesn’t mean that we shouldn’t take his threats seriously. He is certainly going to pour a lot of taxpayer dollars into building the machinery to carry out mass deportation. The American Immigration Council, an immigrant advocacy group, estimated the cost of deporting 13 million unauthorized immigrants in the United States to be $968 billion over about a decade. Also, certainly one of the reasons President-elect Trump and others in his administration are constantly in the media talking about mass detention and deportation is that they hope people will choose to give up and self-deport, which will help accomplish their goals for them.
Q. What are some of the ways that the Trump administration could rapidly increase deportation capacity?
With respect to finding and arresting deportable noncitizens, the administration could hire many more ICE agents. However, it’s more likely that the government will try to conscript state and local law enforcement agencies to help with immigration enforcement actions by entering into agreements with state and local governments called 287(g) agreements. These agreements deputize state or local law enforcement to carry out certain functions of federal immigration officials. But certain states where one might find the most undocumented immigrants, like California, are not going to enter into these agreements. According to the ICE website, none of the cities and counties in Hawaii have 287(g) agreements with the federal government.
President-elect Trump has also threatened to use the military to carry out mass deportation. This would be a legally questionable move. Analysts have pointed out that the Posse Comitatus Act prohibits the use of the military to enforce domestic policies. However, President-elect Trump has threatened to invoke the Alien Enemies Act, which allows the president to detain and deport non-citizens when the nation is at war, or when the president proclaims an “invasion” or “predatory incursion” by a foreign nation. The last time this law was invoked was by FDR during WWII to justify the Japanese internment camps. It’s never been invoked when the U.S. was not at war.
President-elect Trump, however, has constantly characterized migrants arriving at the border as an “invasion.” And historian Brianna Nofil, who wrote The Migrant’s Jail: An American History of Mass Incarceration, has pointed out that the idea of immigration as invasion is actually not new in U.S. immigration law. In Chae Chan Ping, an 1899 Supreme Court case concerning the Chinese Exclusion Act and which firmly established federal control over immigration, the court described immigration as an act of “foreign aggression and encroachment.” It’s conceivable that President-elect Trump is echoing the rhetoric of “invasion,” which was used in the past against Chinese nationals and Japanese nationals, to lay the groundwork for the mass arrests, detention, and deportation of noncitizens in 2024. So, it’s possible that Trump will invoke this law, but if he does, he will certainly be challenged in the courts.
With respect to the immigration courts and removal proceedings, President-elect Trump could simply hire more ICE attorneys, judges, and court staff to process more cases faster. However, this seems unlikely to me. I think he will do what he did last time, which is impose case completion quotas on immigration judges. Immigration judges are not Article III judges, so they don’t have lifetime tenure. They are essentially lawyers employed by the Department of Justice, which is under the control of the president. So, as he did last time, he could impose case completion quotas to force judges to shortchange due process and deport people faster. If they don’t meet their quotas, they can be fired.
I can also see the Trump administration trying to process more cases under the expedited removal system, which empowers immigration officials to deport someone without providing practically any due process. In certain years, as much as 44% of deportations were carried out via expedited removal. Typically, expedited removals apply to people seeking admission at a port of entry, or who are caught within two weeks of unlawfully entering the "100-mile border zone." The “100-mile border zone” is any area within 100 miles of any border -- the southern border, the northern border, and the maritime borders. (All of Hawaii is within this zone because everywhere in Hawaii is within 100 miles of the sea.) Generally, expedited removal has not applied to people caught in the “interior,” i.e., not within the 100-mile border zone, but the Immigration and Nationality Act does allow for the executive to expand the expedited removal authority to the interior, to anyone who cannot prove their physical presence in the United States for the last two years.
Finally, I mentioned detention. The federal government already has a lot of detention space. In the areas of the country that see the highest levels of migration, the federal government has large immigration detention centers. Over time, migrant detention has become a big business. Today, the federal government actually owns and operates very few detention centers; they’re largely privately run and generate a lot of profit for private prison corporations. In other parts of the country, the government acquires detention space by using local jails. The federal government will make a contract with a county or city government for detention services called an intergovernmental service agreement.
However, if President-elect Trump’s goal is to deport 13 million unauthorized immigrants, which is mass deportation on a scale that’s never happened before, he will have to expand the immigration detention network dramatically, either by paying private prison corporations to build and run detention centers/camps or by entering into agreements with a lot more local governmental entities to use their detention space.
Q. There are about 50,000 undocumented immigrants in Hawaii. In FY2024, there were 888 new deportation cases, the highest since 2008, and 1,200 pending cases, the highest on record. The vast majority of immigrants involved are from China, with smaller numbers from Guatemala, Mexico, Russia and Vietnam. Should Hawaii consider establishing itself as a sanctuary state?
According to the ICE website, none of the city or county governments in Hawaii have 287(g) agreements with the federal government that allow ICE Enforcement and Removal Operations to delegate authority to state and local law enforcement officers to perform specified immigration officer functions like identifying and removing non-citizens with criminal or pending criminal charges or serve and execute administrative warrants on non-citizens.
On the other hand, Hawaii has not passed any sanctuary laws, which would prohibit state/local law enforcement from cooperating with ICE. During the last Trump administration, the Hawaii state legislature did consider a sanctuary state bill called the “Ho‘okipa” bill, but it didn’t pass. At the time, local law enforcement agencies testified against it because they were concerned that they would lose other federal funding they receive if the law passed. At the time, President Trump was threatening to cut off federal funding to cities and states if they pass sanctuary laws. In reality, though, that may not be legal, and if he actually tried to act on that threat, it would certainly be challenged in court.
One argument for sanctuary laws is that local and state governments should not be using local or state money and resources to do the federal government’s work for them. The other obviously is that mass deportation will devastate our close-knit island communities, especially since many longtime undocumented immigrants are part of mixed-status families. We don’t need to assist the federal government with that devastation. Also, immigrants, including undocumented immigrants, make up large percentages of our agricultural, construction, hospitality, and caregiving workforces in Hawaii. Mass deportation will hurt our state’s economy and raise prices for essential goods and services for everyone. Again, we don’t have to help the federal government in doing this work.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.