According to political reporter Aaron Blake, President-elect Donald Trump may separate more children from their parents in his second term than he did in his first. Around 4.4 million U.S. citizen children live with the 11 million undocumented parents Trump wants to deport en masse. According to the Pew Research Center, these children account for approximately 84 percent of the children in the U.S. who live with an undocumented parent.
The answer starts with the observation that Trump may want to deport all of the undocumented immigrants in the U.S., but it isn’t his priority.
According to his border czar, Tom Homan, “President Trump made it clear we will prioritize public safety threats and national security threats first. That’s what the focus will be. There are over 1.5 million convicted criminal aliens in this country with orders for removal who we’ll be looking for, there are thousands of gang members we’ll be looking for.”
Nevertheless, every deportable immigrant in the United States will be at risk of being arrested and placed in removal proceedings. They just won’t be subject to mass deportations. Homan emphasizes that, “When you enter this country illegally, you have committed a crime. You’re a criminal, and you’re not off the table.”
The first illegal border crossing offense incurs a fine, imprisonment for no more than six months, or both. Subsequent offenses can result in a fine, imprisonment for not more than two years, or both.
Homan has to be smart about carrying out his deportation plans, or he will create the same “home free” magnet to illegal immigration that the previous administration’s enforcement policies produced.
A Sept. 30, 2021, memorandum issued by the previous administration restricted immigration enforcement to immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.” In effect, illegal border crossers who reached the interior of the country and just lacked lawful status were home free. They did not have to worry about being arrested and put in removal proceedings.
This was a powerful incentive to illegal border crossers to keep trying until they succeeded in reaching the interior of the country — and it means that Homan can’t categorically exempt any group of deportable migrants.
For instance, if he were to categorically exempt the deportable parents of the 4.4 million citizen children, migrants could make an illegal crossing and have a baby here to make them safe from the threat of being deported. In other words, they would be home free. This used to be referred to as having an “anchor baby.”
As I have written previously, the millions of inadmissible migrants that the previous administration paroled into the country are likely to be Homan’s next priority.
Homan said at the Republican National Convention that he had “a message for the millions of illegal aliens who Joe Biden allowed to enter the country in violation of federal law — start packing, because you’re going home.”
The Trump administration just has to terminate their parole status to revert them back to the status they had when parole was granted — in most cases, that of aliens seeking admission to the U.S.
Moreover, the time limit on asylum applications will make them ineligible for asylum if they didn’t apply within a year of arriving in the U.S. — unless they can demonstrate changed circumstances which materially affect asylum eligibility or extraordinary circumstances justifying their delay.
When undocumented immigrants give birth to children in the U.S., the children acquire U.S. citizenship. However, contrary to popular belief, having citizen children does not shield parents from deportation.
In fact, it does not provide any immediate immigration benefit to the child’s undocumented immigrant parents. Citizen children cannot confer an immigration benefit upon their parents until they reach 21 years of age. However, an unlimited number of visas are available to the parents of U.S. citizens, which means that they may be able to adjust their immigration status to that of a lawful permanent resident when their citizen children reach age 21.
If deportable parents are ordered to leave the U.S. before their child is old enough to sponsor them for lawful permanent residency, they have the option of taking the child with them or leaving the child here in the care of a guardian or foster parent. It’s entirely up to them. Their citizen children cannot be deported.
In extraordinary situations, the parents may be able to get relief from deportation on the basis of the hardship the child will face if separated from them. Immigration law permits the cancellation of removal and adjustment of status to that of a lawful permanent resident if it is merited as a matter of discretion and an immigrant can establish that he or she…
- has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the application date;
- has demonstrated good moral character;
- has not been convicted of specified offense; and
- establishes that his or her deportation would result in exceptional and extremely unusual hardship to his or her spouse, parent or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
To meet the hardship requirement, however, the applicant must establish that the citizen relative “would suffer to a degree that goes above and beyond the type of suffering normally expected when a close relative is deported.” Consequently, it is very difficult to get relief under this provision.
I think it is unlikely that Homan will deport 11 million undocumented immigrants during Trump’s second presidency. But I do expect him to succeed in removing most, if not all, of the ones who pose a threat to national security and public safety — and many other deportable immigrants as well.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
