The following is a rough transcript which has not been revised by The Jim Rutt Show or Rachel Winkler. Please check with us before using any quotations from this transcript. Thank you.
Jim: Today’s guest is Rachel Winkler. Rachel is a partner at the Nixon Peabody Law Firm with a practice focusing on immigration, customs and cross-border risks. Prior to Nixon Peabody, she was at the Department of Homeland Security where she was involved with enforcement and border security issues and made policy recommendations to improve the delivery of immigration benefits and services by the government. She also assisted on the development implementation of comprehensive immigration reform, including programs like Deferred Action for Childhood Arrivals, which many of us know as DACA, and she led the department’s counsel on combating violence against women.
Welcome, Rachel.
Rachel: Thanks so much for having me.
Jim: I’m looking forward to this conversation. It’s very timely. As we all know, one of the cornerstones of President-elect Trump’s platform was a promise to carry out the largest domestic deportation operation in American history. Today, we’re going to explore the history and scale of the issue and the abilities of the new administration and whether they will or won’t be able to carry out their plan and impediments along the way and things that they might do to get around those impediments, et cetera. So I’m going to start off with a little bit of history, and you can correct me if I’m wrong. This is of course the genius of the internet, particularly my good friend perplexity, which is good, but not infallible. So if some of this stuff’s bogus bullshit, just let me know.
Rachel: Fair enough.
Jim: The estimates and the number of undocumented aliens resident in the United States seemed to range between about 11 and 14 million with 11 or 12 being the most common. There was a decline in that number from 2007 to 2019, but there seems to have been an increase since 2020 something on the order of 500,000 a year. Approximately 70% of the households with unauthorized immigrants are considered mixed status, meaning they also contain lawful immigrants or US born residents. I did not know that. Does that sound about right to you?
Rachel: It does. It does.
Jim: And that certainly complicates the issues. The unauthorized immigrant population is aging with a decrease in those aged 18 to 34 and an increase in those aged 45 and above. Unauthorized immigrants represent about 5% of the US workforce, and despite a declining trend, Mexico remains the largest source with approximately 4.8 million. After that, Guatemala, El Salvador and Honduras, and somewhat to my surprise, India are the leading sources of undocumented immigrants to the United States.
So we have this situation. We have a promise from Trump. How do we think about this? Trump says, “I want to deport him all.” We’re not quite sure what he actually means. So let’s start with what is the legal standing of a undocumented immigrant, and does that differ by depending on what kind of undocumented immigrant they are?
Rachel: Yeah, absolutely. So yes, there are a variety of different types of undocumented immigrants here in the US. There’s a variety of different legal pathways that may be open to them to change their status from undocumented to documented. There’s a large population of undocumented immigrants in this country who may have access through the courts to a lawful status by virtue of the amount of time they’ve been here unlawfully and their relationship to a US citizen or lawful permanent resident, but they haven’t been able to pursue that either because the immigration courts themselves are so backlogged and there really is no meaningful way to get access to that except through something called a notice to appear, which initiates removal proceedings or they’re trying to go through the legal process, which requires sponsorship by a US citizen or lawful permanent resident, and then application for a waiver from the US government.
That waiver process does allow for… Some people can wait inside the US while they get the waiver, but ultimately almost everyone has to go to the embassy abroad in order to get what’s called an immigrant visa to come back in. There are some challenges to doing that. Most people don’t want to go do that because sometimes they can be stuck for years outside the US before they come back in. But suffice it to say there are a variety of legal options available to many undocumented immigrants.
That being said, there’s definitely a significant population of folks here who either already have orders of removal, which means they’ve been ordered deported by an immigration court already, and those orders of removal haven’t been effectuated yet. So either they were supposed to leave and they didn’t, or they disappeared and ICE hasn’t had the resources to find them or hasn’t prioritized finding them in order to effectuate those removal orders. There’s also a smaller population of individuals who have removal orders, but their countries refuse to take them back. So there’s a diplomatic angle to all of this as well. And then there’s folks here unlawfully that have absolutely no options, no angle. They cross the border. If ICE can identify them, pick them up, they would get kicked out pretty quickly.
Jim: As I was doing my research, I found differing numbers, but both of them pretty good size on the number of people with pending deportation orders. I found 1.4 million and I found 2 million. Something in that range sound reasonable to you?
Rachel: It does, and I think there’s going to be a pretty [inaudible 00:05:52]. Between 1.4 and 2 million, there are going to be folks within that population who would qualify for some type of relief. Maybe they were ordered removed 20 years ago, they didn’t leave. Now they have US citizen family members or have sympathetic circumstances that have changed in the intervening years. Under the laws that exist now, they could potentially have their removal orders reopened. They could get a waiver for those removal orders, pursue lawful paths to status. So even within the existing population of folks who have removal orders, there’s probably going to be a good chunk of those who can qualify for some type of legal status, at least as the laws exist now.
Jim: Yeah. So yeah, let’s get into that. The laws that exist to now and what might change. January 21st, Trump takes office and calls up Homeland Security and says, “Kick out 1.4 million people whose deportation orders are pending.” What happens from a legal perspective at that point?
Rachel: I mean, look, I think there’s probably some work already being done from a policy focus from Trump’s team, from president elect’s team, looking at what existing policies does DHS have in place now or did the Trump administration use last time to prioritize these goals? So under the Biden administration, you have a variety of policies in place to prioritize prosecutorial discretion, so basically giving ICE and DHS these tools to prioritize who they’re going after. Sometimes going after folks who are priority targets, folks who have criminal histories, folks who are actively engaged in some type of bad action, it’s harder to get those people than it is setting up a sweep maybe in a neighborhood that we know has a large population of undocumented individuals.
And so I think there’s a really easy way to identify folks with existing removal orders, folks who maybe fall within the new administration’s priorities. You pull any of the policies that aren’t rooted in legislation that are supportive of prosecutorial discretion, you aggressively enforce the law as it is written without ambiguity, which just means if you have a removal order, we aren’t going to look at any sympathetic factors. If you run up against an ICE officer in the field and enforcement and removal officer, there’s no discretion for that officer to decide this is a sympathetic case, it’s probably not worth our time. Let’s refocus on finding this population. So if you take away discretion that you’re going to have an easier job pulling folks together.
Jim: Okay. I want to make a distinction between policies, administrative rulemaking, and legislation as three different kinds of viscosity in the system as I understand it. Policy can change immediately on day one. There’s no rulemaking. There’s no constraint. President just says, “The policy used to be thus Ms. Homeland Security. Now the policy is thus and such.” And that could happen on January.
Rachel: Absolutely, and I think that’s going to be the easiest shift that we see, and that’s going to impact how we see folks going into the field and prioritizing the initial round of sweeps and the initial round of targeting. I think once you have a large population of people that you’ve identified and you’ve pulled together, it becomes more challenging to figure out, okay, well, how do we get rid of these folks? So focusing on the population that already has those removal orders, that’s going to be the easiest way to get a large number of people out of the country more quickly.
You’re going to have some folks within that population who pursue legal strategies like filing habeases in federal court to stay their removal, who file other types of immigration relief or have other types of immigration relief pending, but ultimately, a good chunk of those folks who have existing removal orders, there’s really nothing that they can do to stop the execution of their removals, their actual deportations. So that’s going to get the administration some hard numbers pretty quickly if they can identify where that population is located and if they can confirm the validity of those removal orders essentially.
Jim: Gotcha. Another class that’s been talked about is those with criminal convictions or at least criminal convictions of some substance, not spitting on the sidewalk or something. What is the legal status of undocumented immigrants who have criminal convictions?
Rachel: Yeah, I mean, my practice includes representation of folks who have generally white collar criminal convictions who are navigating their immigration status and generally trying to stay in the US and fighting removal. But even with a criminal conviction, you’re not automatically deported. When you’re convicted in criminal court generally. ICE will then issue what’s called a detainer against you while you are in custody. And in particular, this happens in pretty seamlessly in federal custody. So ICE will issue a detainer while you’re still serving your sentence out. Once that detainer is issued, you then transition from BOP custody, Bureau of prison custody into ICE custody. If you are staying in detention, most criminal aliens will stay in detention or at least ICE will try to keep them in detention, and then ICE will issue what’s called a notice to appear. That notice to appear starts your removal proceedings in immigration court.
Even when you are a criminal alien who wants to depart the country as quickly as possible, sometimes ICE will still… You’ll still have to go through this formal bureaucratic process of having the NTA issued and either having a removal order issued against you, or in some cases asking for a voluntary departure, but there’s a bureaucratic process that you have to go to. Even some of my clients who want to get out of the country as quickly as possible and never want to come back, they end up costing some taxpayer dollars because they have to go through this bureaucratic process. So even if you have convicted criminal aliens with a conviction against them who have served their time, if they haven’t had a notice to appear issued, if they haven’t been put into immigration court yet, if they haven’t had an immigration judge issue them removed, they still have to go through that process. We don’t have the ability to just kick them out immediately, and that is codified, right? That process is codified. That is, there’s no discretion to forego that process.
Jim: That is in legislation. So that fits in their legislative bucket of constraints on the policy.
Rachel: Exactly.
Jim: How long does that take? Just as a rough number. I know it varies tremendously case to case, but just if you had to pick a number out of the air, you talk to a client, you go, “All right. You are an embezzling little motherfucker and they’re going to kick you out, but when you serve your four-month term at Club Fed, how long will it be before your ass is back in upper Volta or wherever you came from?” Right?
Rachel: Yeah. So it largely depends on whether or not the individual stays detained in ICE custody, whether or not they have a long enough sentence in BOP custody to go through the removal process while they’re there, or if they can get released. So if they’re in custody either in BOP or in ICE detention, it’ll go much quicker, anywhere from two to nine months, maybe sometimes a year, but you are on an expedited docket, you’re on a rocket docket, essentially, just for folks who are detained. And there are immigration judges dedicated to managing those dockets specifically. They are generally judges who have significant expertise with criminal matters. Immigration law as it relates to criminal issues and criminal, I mean, it’s fun because it always changes and there’s all of these unique interpretations, and you have the ability to really make new case law all the time, which is fun, but it’s awful in the sense that it is very confusing and it’s always changing. So it can be complicated and it can drag some of these cases out.
Now, if you can get your client released because of maybe they have health issues, maybe there are underlying awful family circumstances, maybe their crime wasn’t aggressively significant, but it’s still serious, then you’re put in normal proceedings cases are getting scheduled out seven, eight, nine years in the future. Every once in a while, you can try to get it expedited, and you can call the court clerk every day and try to get your case heard sooner, which most of the… Frankly, a lot of these individuals have confidence. They have a pathway to staying here because they have US citizen family members. Maybe they have sympathetic circumstances so they can qualify for waivers of their criminal inadmissibility.
So they’re trying to get this to happen sooner rather than later so that they can get the noose off of around their neck. But if you are pulled out of the rocket docket, if you are released from custody, either from immigration custody specifically, you may not have your case heard for years and years and years. During that time too. You’re stuck in the US. You can’t travel internationally because if you do travel internationally for the most part, you are self-deporting and we’re not going to let you back in.
Jim: Gotcha. Now, is that an area where the administration could change policy and not release anybody or release less people?
Rachel: 100%. There is a concept called mandatory detention that is a legislative requirement basically that says these specific populations of individuals are not allowed to be released from detention. So for instance, if you’re convicted of something called an aggravated felony, which is a legal term of art, but there are a lot of very serious felonies that fall within the aggravated felony context, if you are convicted of an aggravated felony, you are not getting released. Your detention is mandatory. I have only seen a handful of individuals get released out of mandatory detention where there are very significant health issues that are costing the US government significant amounts of money because they’re having to treat that person in custody and that individual is in a flight risk so they can get released to get their health treatment, but otherwise, you are not getting out of custody with a mandatory detention.
ICE could say, as a policy and put into police a policy, “Hey, we’re not considering any types of prosecutorial discretion. Anyone who has a criminal conviction, if we get notice of that conviction or of their arrest even, everyone’s getting into custody. We’re putting everyone in custody, nobody’s getting out.” I think the challenges you run into there are we don’t have enough bed space for that right now. I mean, arguably we don’t. This administration doesn’t use some of the tools that might be available to them for bed space if we make mandatory detention a thing across the board. I think there’s creative ways that you could come up with some bed space, and then I think we’re going to see the new administration funding a significant number of new beds and primarily probably in private prison facilities.
Jim: Gotcha. Now, you’ve mentioned mostly in a chain federal custody. How does that change when it’s a state crime?
Rachel: Yeah, it can be very similar to what I’ve just talked about, but it can also be very different depending on whether or not that state, city, local jurisdiction is a sanctuary city or sanctuary state. So there’s a handful of… I think the government wants it to normally work, and the way it works in some places is you have someone arrested or you have someone convicted of a crime, there’s a notice that goes automatically to DHS, to immigration customs enforcement regarding either the arrest or the conviction. And then DHS can make the determination either automatically or on a case by case basis, whether or not that individual needs to be subject to immigration proceedings, and that would trigger issuance of a detainer, and then the detainer would go to state, local law enforcement, state and local law enforcement would then hold that person until ICE can come take custody of them. Then they would go into immigration enforcement.
I think what you see happening in some places, there’s a delay in information sharing. Even in jurisdictions that want to be participatory in this process, sometimes there’s a delay in information sharing. Sometimes there’s a delay in ICE’s capability to go pick up a person who has been arrested, or who has been convicted, and they’re released into the community. And then sometimes there’s an active, in some communities, and particularly sanctuary folks, locations that identify themselves as sanctuary cities or states. There is a purposeful refusal to communicate that information to federal law enforcement. And I think there’s definitely circumstances where those communities do share information, particularly for very serious crimes, but categorically, sometimes they will not share information for non-serious crimes regardless of who the offender is. So you could have someone with a very serious criminal history or someone who is a suspected gang member who gets arrested for a broken taillight, but that community, that city, that state isn’t going to share that information even though they know that this is a person of interest because it’s a low level crime and their policy is not to share that information.
So I think it’ll be really interesting to see how that information sharing changes, and there’s a lot of things that federal government can do to try to put pressure on those cities, states to encourage them with a heavy hand to participate in this information sharing more aggressively, and then how they’re going to ensure that ICE always answers the call when these folks are identified at the state or local level. That’ll be an interesting conversation about funding and available and staffing essentially.
Jim: Yeah, there’s lots of practical issues we’ll get to it a bit, but get through the legal first, right? The sanctuary cities and states. What’s the legal status of that? Has that been tested in court? Do the cities and states, presumably federal preemption, could, well, get around that? What’s the current status in the law of sanctuary cities and states?
Rachel: Yeah, I mean, as far as I’m aware, it hasn’t been aggressively challenged to the extent that the Supreme Court has weighed in. So I suspect that we’ll see that coming. Right now, the way that the federal government has managed the issue is pulling funding where states become non-compliant, hooking compliance into federal funding. I mean, I think there’s a really significant state’s rights issue here because while states don’t have the ability to manage their own internal immigration program from a benefit sharing perspective, they’re responsible for their own law enforcement programming. And I think this room court has weighed in pretty squarely that immigration is a federal jurisdiction.
And so you have states who have litigated issues related to immigration enforcement at a state level through civil rights cases, and they’ve had their hands slapped for it. I think we’re going to see more of state-based immigration enforcement, but states also, I think, have limited resources, and I think one of the biggest challenges we’ve heard from states categorically is they don’t have the money to dedicate to these types of enforcement programs. We’ve seen Texas dedicate a pretty significant, increasingly significant amount of money to their border enforcement policies and priorities, but local state and city governments generally are strapped for cash, and this isn’t an area they’ve prioritized necessarily until it becomes one. Right?
Jim: Gotcha. Yeah, and you can always plead lack of money, right? “Yeah, we’ll do it, but we just don’t have the personnel. Sorry.” Right?
Rachel: Yep. Yeah.
Jim: Okay. We’ve talked about criminals. Now let’s talk about another class of undocumented. Let’s assume they’re entirely law-abiding, go do their work, or not a problem, but they have S citizen children in their household. What’s their legal status? Is that different?
Rachel: Just because they have US citizen children alone doesn’t open up any pathways to status for them. Those children may be considered individuals if they are eligible for a hardship waiver through either their time present in the US or if they’re being sponsored for status through an adult child or an adult relative, immediate relative or family member. But kids, US citizen kids under the age of 21 don’t give you a free ride. You can get sponsored by a US citizen child once they hit the age of 21.
Jim: Okay. Another slice of the population is those who’ve been in the country for a long time. Is there a legal difference or is there a practical and slash policy difference?
Rachel: Yeah, there’s a legal difference. There’s a variety of buckets that you would evaluate someone in those circumstances for where there’s pathways to lawful status, but one that is a legislatively created legal pathway is something called non-LPR cancellation of removal. Basically, if you’ve been here 10 years consistently, you’ve maintained lawful physical presence, you are not inadmissible for criminal issues, for immigration fraud, for serious crimes that you’ve committed, you have a US citizen or lawful permanent resident, immediate family member, so child, partner, parent, and you have good moral character, you are a person who has contributed in your community, who has letters of recommendation from people who know and love and support you, and you can show that your US citizen child, lawful permanent resident child, parent partner are going to suffer extreme hardship…
So it’s not just that they exist and yeah, it’s going to suck if you get removed and they don’t get to see you anymore. That’s normal. That sucks for everybody in this type of scenario. It has to be a really extreme hardship. So it has to be your kids have to be experiencing some type of medical issue or mental health issue. Maybe you’re the primary breadwinner for all of these people in your family, and they have no other means to support themselves if you were kicked out or maybe you have some type of very serious health or heart issue that in addition to the hardship caused to your family members, the judge could take that into consideration.
So there’s this legal pathway that exists to creating a pathway for you to be here. You do have to have a US citizen or lawful permanent resident family member that qualifies. It depends on the circumstances, but you also have to be in immigration removal proceedings. So you can’t just apply for this. You can’t-
Jim: It’s a defense rather than an affirmative action. Right?
Rachel: Exactly. And again, you’ve got immigration courts that are backlogged six, seven, eight, nine, 10 years, and it’s really hard to get into immigrate. This sounds crazy. It makes me chuckle if it wasn’t so absurd, but it’s hard to get into immigration court. You can’t just call up ICE and be like, “Hey, I really would like you to NTA me. I would like you to put me into removal proceedings because I have this relief available and I think I can get a green card. I just need to get in front of an immigration judge.” I have tried for clients, and it is unreasonably difficult to get this issued for people who have a pathway to relief. And there’s risk, obviously. There’s no guarantee. The judge has to agree with you. You have to have a decent case. It’s really hard… When you’re knocking on the door saying, “Hey, let’s get this guy into removal proceedings,” sometimes ICE doesn’t want to do it if they know it’s not necessarily going to lead to a removal. And again, they have limited resources, so they’re prioritizing what makes sense for their numbers.
Jim: Let’s talk a little bit about this seven to 10 years thing. I mean, these immigration cases in the main are not like a Wall Street Ponzi scheme or something that are a massive investigation and huge prosecutorial load. Why in the world does it take seven to 10 years to run through a relatively straightforward immigration case?
Rachel: I think that the simple answer is we don’t have enough judges. So all of this… We have been hiring more judges. So there was a good chunk of hiring done under the Trump administration. There was a good chunk of hiring done under the Biden administration, but ultimately, they can’t hire judges that they don’t have money for. And a lot of this goes back to Congress funding the various agencies and the ways that they see necessary. And historically, I think EOIR has been the executive office review within DOJ, the office that has adjudicative authority over immigration cases. I think they’ve always been underfunded, and I think we’ve seen historically more money, money being surged into enforcement without similar numbers going into the immigration judicial system, and that’s created this system where you are catching more people and increasing the numbers that are kicked out, but not having the judiciary keep pace. And you don’t have enough judges. You just don’t have enough judges to go through these cases as quickly as you need to.
I think when you’re in immigration court, it is you want people to have the opportunity to present their claim, and you want them to have due process and you want a judge to hear them out so that when you say, no, we know that they’ve had a fair shake, but I just don’t think we have enough people right now on board saying… And the folks we do are incredibly overburdened and have incredibly high caseloads on very complex issues. And I think that’s a challenge
Jim: You mentioned that’s a constraint in legislation at this point. So the Congress would have to act to increase the*
Rachel: Congress would have to give them more money.
Jim: Okay, interesting. Now, are these real federal judges or are these administrative law judges?
Rachel: They’re administrative law judges. So pros and cons, right? Faster to hire them, faster to get them on board, faster to get them trained up. And they are treated differently, obviously, than the federal judiciary, but it’s easier to get them in there. And you have folks that are across the board in the immigration judge arena. So you have folks that are appointed by Republicans, by Democrats. There are some independent organizations that track the decisions. And so you have folks that grant a lot of approvals. You have some folks that hardly ever grant approvals. I think that inconsistency is challenging in and of itself, but you also don’t necessarily have the same cases coming in front of some judges. A judge in New York may see a huge slew of a specific type of case and a specific type of foreign national because of who lives in that city versus a case in Texas. And so I think it’s complicated.
Jim: Now, could the administration fire the judges that they think are more immigrant friendly?
Rachel: Yes. I think that you’re going to get pushback, but I think that there’s likely going to be a concerted effort to ensure impartiality, which should exist no matter what. But I wouldn’t be surprised if they took a hard look at those statistics and said, “Hey, how come you’re getting two approvals in a lot of these cases?” And there may be a very reasonable explanation because they’re seeing a specific type of case because of the population in front of them that warrants these high level of legal approvals and somebody who’s denying is getting completely different cases. So I think there’s reasonable explanations out there, but I wouldn’t be surprised if they start taking a harder look.
That being said, I think that they would be able to hire more judges. Don’t get me wrong. It is a hard job. It’s a hard job. And then I know a lot of people who get a lot of value out it and are very proud to be doing it, but it’s not easy and it’s pretty thinkless.
Jim: Yeah, yeah, pretty much messing with people’s lives in a negative way, right?
Rachel: Yeah, and I don’t think you get many cases in front of you that aren’t sad.
Jim: Yeah, it would be tough. It would be tough. Well, let’s move on to another category, which is refugee status claims. Again, seems to be a range of numbers floating around, but I got between 1.3 and two million pending asylum applications. Holy shit.
Rachel: Yeah. That’s for folks who have applied with USCIS, US Citizenship and Immigration Services. Those are people who come into the US lawfully and apply with USCIS, and then also folks who come in through the border and apply defensively and end up in immigration removal proceedings. So some of immigration court backlog we were just talking about are people pursuing asylum as a defensive mechanism. But both categories, folks who have applied with USCIS and folks who have applied defensively in the immigration court, I mean, it’s taking an insane amount of time to adjudicate these claims wherever they are being housed.
Jim: And what’s the acceptance of claim rate? I would notice that the actual numbers of accepted asylum seekers each year is well below the 125K limit. So it’s like 50, 60, 80,000 a year are being-
Rachel: Kicked. Yeah, kicked back.
Jim: Are being accepted. I don’t know, is it a lot more than that are being rejected? Approximately, what’s the ratio? Do you have any sense?
Rachel: I actually don’t have those numbers in front of me, so I don’t want to give you a fake number. But anecdotally, I can say there are a lot of folks who make the claim defensively on good faith, but who don’t necessarily qualify once you dig into the meat and potatoes of their eligibility. And I think it can be very difficult to make a determination regarding someone’s eligibility, particularly because if you have an attorney involved, the likelihood of success ratchets up pretty significantly. Also important to note is when you apply proactively with USCIS, so if you apply after you’ve entered or you apply and you say, “USCIS, I’m an asylee,” and they say, “You know what? We think that maybe…” We have some concerns here. Maybe you qualify, but maybe you don’t qualify enough for us to approve you right off the bat, your case then gets referred over to EYR. So you then get a second bite at the apple in removal of proceedings.
And this process was created to ensure that we didn’t accidentally deny someone who truly was fleeing persecution. And the idea as an immigration judge is in a better position to more effectively evaluate a more complicated claim. And an ICE attorney, a chief counsel attorney, they’re like prosecutors for the government in a sense, would be in a better position to poke holes in weak parts of the claim. And so we would ensure through this two-step process that we weren’t kicking someone out who really deserved protection. I think that it is a wonderful system to, in theory and in practice that has created some pretty significant challenges and has contributed to that backlog that we see.
Jim: Could the administration change any of these procedures? And if so, what authority would they need to do so?
Rachel: A lot of these processes are… The asylum process generally is codified via legislation. However, they’re the two-step process. We could look at some rulemaking changes. We could also look at some rulemaking changes as it relates to the categories of how the categories of different individuals are protected. So in order to qualify for protection, to qualify as asylum or refugee, you have to fall within one of five protected groups. How those protected groups have been defined over time has been expanded through case law through the courts. We’ve also seen some regulatory expansion as it relates to who falls within certain categories, particularly a category called particular social groups. And so I think we could very realistically see rulemaking that limits those categories. I think it would be unrealistic to see any type of legislative action that would change that process, but we could definitely see rulemaking limiting those categories and policy interpretations kicked down the pike that directed judges to specific opinions, a specific case law out there that limits the statutory interpretation available to them.
Jim: Gotcha. I found said approximately 25% of pending asylum cases are from El Salvador, Guatemala, and Honduras. Now, are those good faith asylum requests? Are those, I don’t know. Why don’t they just stay in Mexico, I guess would be my natural reaction? They speak Spanish. They’re culturally closer. What in the hell are they doing come to the United States?
Rachel: I probably can’t professionally speak to why they’re not staying in Mexico, aside from the fact that Mexico is… There have been some interesting tools that Mexico has put into place to help kick them back at the southern border and also help promote their continued travel up to the northern border. And I think, from a realistic standpoint, Mexico lacks some resource for even their own citizens. And I think when you’re traveling translating through, you could see that. I think that there are some good faith claims being made. I think when you talk to folks who have fled El Salvador in recent years, fled these areas, the Golden Triangle area, they’re experiencing very serious violence and threats and awful gang violence.
And where I think reasonable people can disagree where to draw the line on whether gang violence is just violence or whether gang violence can become persecution because of the government’s inability or failure to act and protect the people. And I think there a very reasonable discussion to have there. I think for folks who are crossing… I think they’re crossing a good chunk of them. There’s no question, bad actors included, but they’re worried that their kid’s going to get recruited into a gang. And they think that by coming to the US, they will have more access to opportunity, more money and more protection to stop that from happening. And I think the legal complexity of would they qualify for asylum isn’t something they’re evaluating before they make the track.
I also think there’s a lot of misinformation being spouted at them by cartels and by other bad actors who make a lot of money off of people making the trip and crossing. And the US government has tried to counter that messaging through engagement on the ground as well, by working with governments down there, but at the end of the day, when you have economies and places they’re unsafe and that families feel like their kids can’t have a successful future, I think you’re going to continue to see it. And I think that’s a larger convert. I think regardless of the border security and enforcement that you put in place at the southern border, I think you’re still going to see flows because we are America and the American dream is always going to shine and people are going to do whatever they can to try to access that. Not saying we shouldn’t be putting more aggressive protections in place, but I think that it’s going to continue to be a problem regardless of what we do. Right?
Jim: There’s always going to be people, osmotic pressure, we could call it, where people from poorer places want to come to richer places or dangerous places want to come to safer places. Very understandable from human nature. My own track, a little bit of my immigrant past and people fleeing persecution in Ireland and the actual ruts themselves, half of them were killed off during the 30 years war because they were predecessors to the Mennonites, and they were considered heretics by both the Catholics and the Protestants, and they fled in 1690 approximately. So yeah, there’s always been that pressure and it’s a very-
Rachel: Tale as old as time.
Jim: Exactly, right? As you say, the pressure will always be there. And it’s a moral/political/economic question, how much of a membrane do we have?
Rachel: It becomes a conversation about meaningful comprehensive immigration reform. How do we create opportunities for… People are coming here and obviously doing jobs. Does that mean we need to create pathways for those jobs to continue to get done through visas or do we not need those jobs done? And are there different foreign policy measures we should be supporting abroad that could ameliorate some of these economic and safety concerns south of the border? And then you have the cartel, you have the criminal aspect to it, and the cartel is a very successful, very well-functioning international organization that we have to contend with, and it is in their economic interest to continue to get people to flow through our border.
Jim: It’s a big problem. It’s not going away. It’s going to have to be managed. Exactly. Now, we’ve talked about various things that can be done by the administration as it wants to carry out its strategy. In my notes, I basically laid them out as increasing order of difficulty, policy changes, which they can do easily, presidential orders, which they can do relatively easily, relatively quickly, administrative rulemaking, which takes longer. It has a whole process. It has some delays in it. And then finally, legislation. Am I missing anything in the categories?
Rachel: Those are the formal categories. I do think there’s something to be said for blanket hiring for how you recruit people, the types of people you recruit, how you backfill positions if people leave. I think that during the last Trump administration, we saw a slew of departures from agency folks. For the upcoming administration, we’ve been hearing talk about reevaluating economic efficiency and government efficiency and maybe cutting different departments that aren’t adding value in the ways that we need it added. And I think you’re going to see probably some additional departures. That’s going to have an impact too on efficiency across the board. When you don’t have as many people to do jobs, you may not see those jobs get done as quickly.
I also think that it’s harder. It’s not like you get to reuse money for jobs as easily as maybe you can in the private sector. It’s not like it’s just one big bank account where you can just willy-nilly draw funds from however you want to use it. The budget process is incredibly complicated. The government contracts a variety of services out to contractors. Those bids go out years in advance for a prolonged period of time. Those funds are committed to. It’s really hard to unwind those types of commitments. Congress basically gives you money every year based on the very specific categories within which you’ve requested it. It is hard to move those funds around. So I just think there’s some really practical realities that are going to impact how things are implemented. And then once implementation occurs or once structural changes happen, how those things are implemented is going to be impacted as well.
Jim: Yeah, you’re absolutely right. Personnel is always policy, right?
Rachel: Yeah.
Jim: And the people you put into both top jobs, and then as you fill the ranks, because there’s always significant turnover in these positions, and particularly if there’s new money for more hiring, like for instance in the immigration judges, they will certainly put their thumb on the scale for the kind of immigration judges they want, I presume.
Rachel: And then I think it’s hard to find people in some cases. We have seen historically hiring surges for customs and border protection, particularly as it relates to border patrol officers. And we’ve seen surges over the years. I think when Homeland Security was created from 2001 to 2009, I think they doubled the number of officers on the border. And then we’ve seen surges over the years. But historically we’ve seen really significant challenges with those types of hiring initiatives, particularly among border patrol because of the high level of corruption that happens at the border, it’s hard to find a population of law enforcement who they’re living in communities that are close to the border, but sometimes they’re ostracized from the border communities they’re next to because of the nature of their work. They’re not paid a ton of money. They have a hard job. Again, like immigration judges, they’re there for enforcement, but they’re also people and they see lots of people coming unlawfully for trade related purposes, but they also see a lot of heartbreaking situations over and over and over again. And that is a really challenging job. It’s hard to keep people around, and it’s hard to find people who want to move to the middle of nowhere Texas to pursue this challenging opportunity.
And so I think that administrations talked about ways they might handle those challenges by leveraging the military options, but I think that those challenges are going to remain, particularly if you continue to have goals of increasing border security. Obviously relying upon AI and relying upon enhanced technology is something that I think both Republican and Democratic administrations have done historically. I think having a secure border is a necessary goal, but I think being creative about how we do that is going to continue to be important because the cartel is going to continue to undermine our efforts every step of the way.
Jim: Yep. It’s always important to keep that in mind. You always have an adversary, right? You can have all the plans you want, but yet the other side’s going to adapt. Always does.
Now, we’ve talked a little bit about policymaking and administrative lawmaking and legislation. We haven’t really talked about presidential orders, executive orders. Is there anything that you could think of that the Trump administration might do in the area of executive orders that would change the playing field with respect to mass deportations?
Rachel: Yeah. Again, I think that issuing… I expect that we’ll see a large number of presidential orders day one within the first 180 days that significantly limit the ability of non-citizens to get into the country. I think that it’ll put constraints on existing legal immigration as well. So additional scrutiny and background checks on folks who come from specific types of countries, even if they have lawful visas. And then I think we’ll see presidential orders that direct DHS and DOJ to implement policy changes across the board that reinforce the ability, the enforcement and removal efforts to move forward as quickly as possible.
I think one thing that we likely will see is the expansion of expedited removal. Expedited removal is a tool that exists currently within 100 miles of the US border, and it allows immigration officials to expeditiously remove someone who enters the US without the proper paperwork. And you are then subject to a five-year ban, but you don’t have to go through the same rigmarole or due process, if you will, to get someone issued a removal order as you do through the normal process. You don’t have to go in front of an immigration judge and hear your case and weigh all of the options that might be available to you. So I think one of the most significant things we can see expanded is the use of expedited removal in the interior of the US versus just within the borders of the country or just within the 100-mile radius of the border. I think we will see them push for that pretty aggressively and using the border crisis as justification for the need. I think it’s going to be litigated aggressively. If they can succeed with the use of expedited removal everywhere in the US, then we’re going to have a lot more people here in the country with removal orders. And because the expedited removal process happens so quickly, we’re going to see people get caught up and kicked out very quickly as well.
Jim: Does the president have that authority or is it not clear? What is the legal framing of that a 100-mile buffer? Is that a policy or is that a law?
Rachel: It is a law with some exceptions. And I think what we’ll see is the administration try to utilize those exceptions in order to expand the use of expedited removal. And I think that we’ll see how it goes in court.
Jim: Keep you all busy, right? You going to go out and buy a new car.
Rachel: I mean, I think it’ll be a really interesting legal argument on both sides. I think ultimately a lot of these issues are going to get teed up for the Supreme Court, and it’ll be really interesting to see how they decide these issues. And I think as a lawyer, I am geeking out on what this is going to look like. I think it’s going to be tough, and I think it’s going to be tough for the country, but to see it play out, even if you are very supportive of getting folks out of the country, which I can understand, I still think it’s going to be tough to see it play out because it’s easier to say, “Let’s get these guys out of here,” and then it’s hard when you see it.
Jim: Yeah, your friend who has the taco truck and he and his family get thrown out of the country, go, “What the hell?” Right?
Rachel: Or your nanny or your cleaning lady or your… And there’s lots of people who are undocumented, have lots of different types of jobs. I know CEOs and small business owners, people you wouldn’t suspect as being undocumented who were undocumented.
Jim: Yeah, probably Elon Musk when he was young, right?
Rachel: I mean, I can’t speak to that personally, but-
Jim: It could be. Right? And Melania Trump too possibly. Right?
Rachel: I mean, the other thing is, immigration errors happen and you don’t want to create such a harsh system that you can’t accommodate for human error, particularly in a bureaucratic process that sometimes doesn’t make sense.
Jim: Gotcha. All right. We’ve talked a fair bit about law and bureaucratic structures and such. We’ll come back to some outliers on law at the end, but let’s now appeal back to your years at DHS. How long were you at DHS?
Rachel: I was there for seven years, from 2010 to 2017.
Jim: Cool. Let’s talk about practical constraints. There’s what can legally be done, but what are the constraints on, let’s say Trump says, “I want four million people out of here by the end of the year.” What are the constraints that will make that difficult or impossible?
Rachel: Yeah, number one, finding the people. That’s a lot. Four million’s a lot. I can’t remember the exact numbers under president Obama deported across the eight years. He’s known by the immigration advocacy groups as the deporter in chief because he deported more people than really anybody else.
Jim: Yeah, I noticed here I have a graph that shows that the first six years of the Obama administration, they were deporting about 400,000 people a year, which is far more than even Trump did.
Rachel: Yeah, yeah. I was a DHS at the time, so obviously I’m a little biased, but I feel like that happened in a fair way. I think when you break down those numbers, you’ll see that the large majority of people who were removed were individuals with criminal convictions, recent entrance, other types of public safety or national security threats. We worked really hard to make sure that we were going after a population that we thought, if we have limited resources, let’s go after these people. It makes sense to use resources to focus on people who hit these priorities, public safety threats, national security threats, recent entrance, yada yada. Right?
I think practical constraints are finding the people. Currently, there is no information sharing except for in criminal-related matters between certain agencies, between the IRS and DHS, between even USCIS and DHS, except for very specific circumstances. So you’ve created some credibility. There are lots of undocumented people who pay taxes. You have undocumented people who have applied lawfully for benefits under the belief that their information isn’t going to be shared unless there’s a larger criminal issue, in which case no holds barred. Government shares everything if they can get their act together to do that in time.
So I think practically right now, it’s going to be kind of hard for them to find those people. If they minimize those information sharing walls, it could be easier because you do have a lot of data that exist within the US government to find these populations. So I think the question’s going to be, how are they going to use the information that exists within the federal government already to target these populations? Obviously folks who have a removal order, easy to find them, and they’re already in ICE’s database, but then where do we get the numbers after that?
So that’s first practical constraint, second practical constraint, how are you going to physically remove these people? Are you just renting a bunch of buses and kicking them into Mexico? That’s going to piss Mexico off. We need Mexico as a partner to both stop the flow at the southern border and help us facilitate entries right now at our southern border, we also need their cooperation on law enforcement initiatives, on trade initiatives, but we have to be very mindful how we piss off these other countries and the backlash and what that could do for us. And same goes for every single other country we remove people to. There are countries who refuse to take back their foreign nationals. For instance, Venezuela. We have a large population of people here currently on temporary protected status. If the president gets through that, what are we going to do with that population of people, particularly if Venezuela refuses to take them back.
And so every country that we remove people to has to agree to accept those nationals returning. We have to coordinate charter flights for those people or busing to Canada or Mexico, and then we pay for that. We pay for those flights. We pay for the busing. We pay for individuals to stay in detention until those things can happen. So there’s going to be a lot of practical costs and I don’t know where are they going to get the money to do that right now if only a specific amount has been budgeted for next year. I think 2026, you might be able to beef that up. Maybe you can get Congress to issue more funds on an emergency basis. There’s going to be some wiggle room, maybe they can do with existing funds. But at the end of the day, you’re going to have practical restraints of how do we actually get this done? And then once we do it, once we round up people, what are we going to do with them?
Jim: Gotcha. And you did mention beds issues in between the detention and the impulsion. Sounds like there’s some things they can do there, but it’s probably also a constraint.
Rachel: We don’t currently have enough beds to facilitate it. Even if the administration utilized options like utilizing other existing federal facilities that and just putting up tents, we still don’t have enough spaces. And there are federal minimum requirements that we have to abide by when setting up these facilities, particularly if people are in detention for longer than a specific period of time. If they’re only in detention for less than three days, like CBP detention, the standards go down because it’s a short timeframe. But once you have folks sitting in detention for longer, the standards go up, they get more costly and you have less flexibility in terms of where you can house people.
Jim: Gotcha. Yeah, reality always bites, right? You can have all the theory you want, but at the end of the day, you got to move atoms around, and that includes people.
Rachel: I think people are teed up for this work. There’s a number of private detention companies out there that already work with ICE that can pull these spaces together rather quickly. I think they learned four years ago the challenges to teeing these things up. So I am confident they’re going to move much more quickly than they ever did before, but I think realistically, there’s still going to be bumps in the road.
Jim: Gotcha. Now let’s move to the outer edge of speculation. I guess it’s not that outer edge. I’ve seen quite a few comments about it that the administration might do some unprecedented things like use the Alien Enemies Act of 1798 or the Insurrection Act to call forth the military to apprehend immigration people. Let’s start with the Alien Enemies Act. What does that provide? Do you know?
Rachel: Basically, it’s one of the first legislative enactments that covered foreign nationals essentially. It was issued in 1798, and it covered aliens who came from enemy countries during times of war. So I think what would be challenging about it is we’re not technically in any active war at the moment. I think it would be interesting to see how we said we’re not in active combat zones right now, but also we’re saying folks are enemies. I don’t know exactly how it would legally play out in that regard. Sounds like somebody might litigate it.
Jim: Got you.
Rachel: But under that act, aliens the were liable to be detained and removed. There was no provision for release from custody. So mandatory detention. And aside from litigating, I think the legal aspect of whether or not we could call people that, I think you would be able to pick people up pretty quickly and say, “You’re out of here” without having to go through any formal legal process.
Jim: I have seen some arguments that it could extend beyond formal declared war enemies, which of course we don’t have any here, right?
Rachel: Yep.
Jim: And then the other one that gets talked about perhaps a bit more is invoking the Insurrection Act. And there are some dangerous provisions in the Insurrection, radical provisions in the Insurrection Act that a lot of people don’t know about, that the normal use is when the state calls for federal assistance like most recently to put help with the Rodney King riots in LA I think was the last time the Insurrection Act was actually called, but there’s another provision that allows the president to act unilaterally.
Rachel: Yeah, and I think that is going to be more concerning because there’s, I think, less flexibility in terms of pushing back on its application. And I think in terms of a national security crisis, I think you have some meaningful concerns related to the cartel and its permeation of the US southern border as it relates to some of its criminal elements. I do think what’s interesting though is a lot of the convictions you’ve seen I’ve seen related to corruption and southern border issues. And I think anecdotally, you see reported in the press a lot, but the cartel really does leverage US citizens far more than it relies upon migrants, at least crossing the US border. And so I think it’ll be interesting to see how that dynamic plays out because I don’t think you see migrants really, or undocumented immigrants. Every once in a while, obviously do. But I think far more, you see US citizens getting convicted of doing the cartel’s dirty work versus non-citizens.
Jim: The other thing I’ve heard, at least anecdotally, is a significant increase in the number of non-Western hemisphere people coming across the southern border, particularly Chinese nationals.
Rachel: Yeah, and I think Mexico has been a partner to us in this limiting flights of nationals into places like Mexico City or Cancun because they’ve seen individuals fly in and then their way up. But again, I think that type of issue takes cross border cooperation. And so what incentive do they have to stop those folks from entering Mexico if we’re not partnering with them as well? And then, again, in Mexico, we have encouraged their efforts to stop folks at their southern border. Resources, I think have prevented that from happening across the board, obviously, but yeah, I think the populations we see showing up at that southern border are constantly changing.
Jim: Yeah, there’s some talk about. Are there terrorists? Are there Chinese infiltrators? So those provide at least the justification for deploying the military, perhaps. Right? At least it’s arguable.
Rachel: Well, and I think we’ve seen… I think gang membership generally has been an interesting issue in immigration jurisprudence, but also, some of the talk I’ve heard is, well, in addition to being gang affiliated, yes, that can be an inadmissibility, but maybe not in and of itself, but why don’t we make gang admission or gang affiliation, elevate it to the level of suspected terrorism? And I think shifting that into a national security discussion versus just a criminal discussion opens the door to a lot more flexibility in terms of use of force and in terms of some of these other acts that give the president a lot more flexibility to use harsher enforcement.
Jim: Gotcha. This has been an incredibly useful conversation. Exactly what I was looking for, laying out all the categories and the rules and the constraints and such. Do you have any final thoughts on what might ensue over the coming year or two?
Rachel: Yeah, I am really particularly interested in seeing how it plays out. You have a lot of folks relying upon this workforce for their businesses in the US, for better or worse, right? And will those businesses then pay more money and start relying on US labor? Are their lobbies going to more aggressively push Congress to create some type of meaningful immigration reform? How is the administration going to tackle those challenges because they think they’re going to exist?
I hope, and maybe I am still too naive and optimistic, but I hope that it can lead to a meaningful discussion for comprehensive immigration, for reform for our country, because I think there’s still a need for that. We still want the best and the brightest to come help us. We want to maintain being competitive globally. We also want to make sure that our businesses can be successful and that they have the workforce that they need. We need to find a path to do those things. It’s only to our own detriment as a country if we keep politicizing the issue of immigration. We need secure borders, but we also need immigrants. And I think you can have a meaningful discussion about how many immigrants, how few, what we should pay them, what they should do, but it should be a thoughtful discussion, not a polarizing political discussion.
Jim: Well, certainly hope you’re right, but I’m afraid you might well not be in the current political environment. My own work in science governance, we’ve certainly seen the US losing out in the brain race where it used to be all the top brainiacs from the world wanted to come to the United States. Now they’re going to UK and Canada and Australia and other places. We still get more than anybody else, but not as dominant as it used to be because of some of the politicization of immigration.
I want to thank Rachel Winkler of Nixon Peabody for an extraordinarily useful and interesting conversation here on the Jim Rutt Show.
Rachel: Thanks so much for having me, Jim. This was so much fun and I really enjoyed talking with you.
Jim: All right, thanks.