Gustavo Solis

The Desert Sun

The federal government has a list of every undocumented immigrant who applied for deportation relief under President Barack Obama’s executive action. Many are afraid of what Donald Trump will do with that list if he becomes president.

A President Trump, or any future president, could repeal Obama's executive action, called Deferred Action for Childhood Arrivals. Once repealed, hundreds of thousands of undocumented immigrants would no longer have deportation relief. Trump, who has said no one is immune or exempt from enforcement, would have their personal information.

To be clear, nobody on Trump’s election team has suggested using DACA information to deport immigrants. While the fear of that hypothetical is real, the likelihood of it actually happening is slim. But if a President Trump wanted to do this, it would be legal.

The president of the United States has significant influence over immigration policy. He or she can unilaterally dictate policies that increase or decrease the number of people deported from the country each year.

The Desert Sun spoke with immigration lawyers and policy experts, including the former assistant secretary of Immigration and Customs Enforcement, to find out how many people a future president can deport without passing new law or securing additional funding from Congress.

“The executive branch has always been very interested in doing things without Congress in this area because it’s very hard to get something by Congress, even bipartisan bills like the Dream Act,” said Julie Myer Woods, former head of ICE under President George W. Bush. “I think there’s a ton that can be done without a legislative change.”

In the absence of immigration reform from the House or Senate, the Bush and Obama administrations took unilateral action to shape immigration policy so that it reflected their views, Woods added.

For example, President Bush unilaterally expanded e-verify, an internet-based system that uses databases from several government agencies to verify if people working for the federal government are legally authorized to work in the country. Bush also pressured employers to fire undocumented workers. Obama further pushed the boundaries of executive power by granting deportation relief to immigrants who don’t have a criminal record in order to formally prioritize who gets deported.

READ MORE: Border towns to Trump: The wall won't work

Because there are so many undocumented immigrants in the U.S. and our laws make it relatively easy to deport them, one of the biggest limitations to mass deportation is resources. According to a 2011 letter from the then-head of the Department of Homeland Security, the agency has enough resources to deport about 400,000 people each fiscal year.

During the Obama administration, more than 2.8 million immigrants have been deported, earning him the nickname of "deporter-in-chief." The highest number ever deported came in fiscal year 2012 when 409,000 were removed from the country. Since then, the number of deportations has decreased, falling to 256,000 in fiscal year 2015.

Experts who spoke with The Desert Sun said a President Trump could easily surpass Obama’s deportation numbers by reallocating resources and resurrecting enforcement programs that are no longer en vogue.

“I think you could quickly approach 500,000 (people). I don’t think it would be difficult to reach that level,” said Jessica Vaughan, Director of Policy Studies for the Center for Immigration Studies, a conservative non-profit research organization. “This significant increase can be accomplished with policy changes and with a change in allocation of resources.”

The two programs most commonly pointed to were “287 G” and “Secure Communities.” Expanding these programs would make it easier for ICE to detain undocumented immigrants without having to significantly increase the agency’s budget, experts said.

The 287 G program essentially deputizes local police officers and sheriff’s deputies to check immigration status of immigrants and place holds on undocumented people. This wouldn’t hurt the agency’s budget because state and local law enforcement do the heavy lifting, Vaughn said.

“Designated officers in the participating law enforcement agency get training in immigration law and enforcement and are deputized,” Vaughn said. “You might have a booking officer at a jail who is trained and when they encounter someone at the jail, they have the authority to put that person in deportation instead of having an ICE officer come in and review. It’s very efficient and it uses state and local resources.”

A President Trump also could increase the number of deportations under the Secure Communities program. This program gave ICE access to fingerprint databases of state and local law enforcement agencies. Immigration officers were then able to check those databases with their system and, if they see a match, ask local jails and prisons to hold inmates for ICE.

Some states, including California, pushed back on the program by passing laws prohibiting law enforcement from prolonging detainment. The program itself stopped being used around 2014 when DHS said they were going to continue to work with law enforcement but narrow the scope of who they target.

Trump mentioned both of these programs, and his desire to expand them, during the major immigration policy speech he delivered in Arizona after returning from Mexico, where he met with President Enrique Peña Nieto.

READ MORE: Trump likely won't win over Latino voters in the Coachella Valley

Today, there are too few judges to rapidly process a backlog of more than 500,000 immigration cases. However, immigration law offers multiple ways to deport immigrants without having them see a judge and a President Trump could streamline the legal process.

Expedited removals and judicial orders are legal ways to deport people without having them see a judge. Expedited removals are like a plea deal where immigrants agree not to fight their case in order to be released from an immigration detention center sooner. Currently, in part due to the backlog, immigrants wait months to see a judge.

Judges can issue judicial orders of removal during sentencing for certain criminal cases. This process removes the need to have a separate hearing in front of an immigration judge.

While all of these presidential prerogatives exist now, there would be resistance to each.

Civil rights and immigrant advocacy groups could challenge new enforcement tactics in court, targeting local agencies, said David Bier, an immigration policy analyst at the Cato Institute.

“Even if you are granted the authority to do this, the courts have shut down local enforcement on discrimination grounds. That is what we saw in Arizona for example,” he said. “It’s just not worth the risk for these localities to risk lawsuit after lawsuit.”

Our laws allow us to deport as many people as we can afford to. This applies to legal immigrants, including permanent residents, as well as undocumented immigrants, experts said.

Immigrants who come into contact with law enforcement can be deported. In immigration law there is no distinction between a shoplifter and a murderer. People don't have to be convicted in criminal court to be considered convicts in immigration court, said Ben Johnson, executive director of the American Immigration Lawyers Association.

“Truth of the matter is that our current immigration laws are extremely harsh,” Johnson said. “With any kind of drug offense it is incredibly easy to be deported from the United States. You can be a legal permanent resident living and working here for the last 25 years, been law abiding for the entire time, and you get caught with a minor drug charge and you can be subject to immediate removal from the United States.”

The border wall, deportation forces and extreme vetting grab headlines but if Trump is elected none of those campaign promises is likely to happen without increased funding or new legislation. Trump's goal to remove 11 million people in two years is unrealistic, according to Ben Gitis, director of labor market policy for the American Action Forum, a center-right policy and advocacy group.

In order to accomplish that goal, he would have to increase the number of detention beds from 30,000 to 340,000 and the number of immigration courts from 60 to 1,300. Trump would have to charter at least 17,000 flights and 30,000 busses for each of the two years, Gitis added.

“I don’t think he will be able to accomplish this without additional funding,” he said.

But Trump doesn’t need additional funding to double the number of deportations from fiscal year 2015.

“He can cause a lot of fear,” Bier said. “He can cause fear and fear can lead to people leaving the United States. People who just don’t want to end up in detention or don’t want to end up being caught, maybe you could argue that that’s going to be an effect.”

Trump’s focus has been on immigrants with criminal backgrounds. It remains unclear what a President Trump would do to the millions of undocumented immigrants with roots in the United States and no criminal record.

The closest we’ve gotten to hearing Trump address these people was during the presidential debates when he said he’d deal with them after stopping the flow of illegal migration – something that has never happened in the United States.

Immigration Reporter Gustavo Solis can be reached at 760 778 6443 or by email at gustavo.solis@desertsun.com. You can follow him on Twitter at @journogoose.