The Biden administration recently announced that it had achieved a dismal distinction in the last fiscal year: U.S. Immigration and Customs Enforcement deported more than 271,000 people through the end of September, a 10-year high that edged out President Trump’s peak of 267,000 in 2019. Trump, of course, already has designs to exceed Biden’s high by several orders of magnitude: a military-led mass deportation operation that would, if fully executed, kick out millions of immigrants—documented and undocumented alike—per year.
While raising alarm about Trump’s plan is important, it’s also important not to unintentionally heighten the anxiety in immigrant communities, which are already as concerned as I have seen them in 18 years of practice as an immigration attorney. Since Election Day I have found it hard to reassure my clients when the media (both social and traditional) has terrified them into imagining a dystopian nightmare of camouflaged troops going house to house looking for undocumented immigrants. But the U.S. has never conducted that kind of untargeted enforcement on the general immigrant population, and assuredly does not have the human or logistical resources to start now.
It is easy to forget now how many of the worst extralegal excesses of the prior Trump administration were delayed or denied altogether by federal court orders, as they no doubt will be again. His second-term deportation regime theoretically would include a novel combination of expanding expedited removal, bypassing removal proceedings with a spurious application of the Alien Enemies Act of 1798, and other end runs that will require massive new spending authorizations from Congress and clearance from federal judges.
Even assuming a world in which legality is not particularly relevant, the infrastructure required to ramp up from the approximately 38,000 beds now available to ICE to what would be required to detain as many people as possible—including family units—is far beyond anything that we have now or have ever seen in the past. If that is truly what Trump has in mind, we immigration attorneys will have time to prepare.
The legal triage that I am suggesting will require many other kinds of attorneys as well: defense attorneys who specialize in post-conviction matters, seasoned appellate advocates, impact litigators, administrative law experts, Freedom of Information Act obsessives, and pro bono units in major firms staffed with attorneys licensed in federal district and appeals courts around the country. But the immigration bar will always be the first responders, and it is time to get realistic about how and where we will prioritize these cases.
To that end, I have adopted the color-coded priority system that is used to triage mass casualty events. Please note that none of this is intended as legal advice; anyone in the following categories should consult with a qualified immigration attorney.
BLACK: “INJURIES INCONSISTENT WITH LIFE”
Any noncitizen with a serious criminal record
Traditional triage models all include some category of people who are suffering “injuries inconsistent with life” beyond any realistic hope of survival, and first responders are trained in mass casualty events to move on to those who can still be helped.
The legal equivalent of these most dire cases include those who have reentered the country after being deported for an aggravated felony, those convicted of multiple serious aggravated felonies (murder, drug trafficking, child sex abuse, etc.), and people with provable connections to gangs and designated terrorist organizations, among others.
These tough cases still deserve review; everyone deserves representation, and as lawyers we just never know what the options are going to be until we have closely reviewed the entire available record and conducted a full intake with a prospective client. But we also have to recognize that there are some people, in lawful status or otherwise, who have never had a reasonable chance of remaining in the U.S. once the system has found them, and certainly far less so now in an era where the phrase “mass deportation” is the closest thing we’re going to get to an actual immigration policy.
RED: CRITICAL AND IMMEDIATE
Anyone who has already received an order of removal and is on a regular check-in schedule with ICE
Deportation is not a unilateral decision. Noncitizens who do not have passports or other travel documents for their countries of origin must be cleared by their governments, and countries like Vietnam and Cambodia have been especially unenthusiastic about receiving deportees. Trump has promised to exercise his right under the Immigration and Nationality Act to impose—and, most recently, his new favorite threat to impose harsh tariffs.
The Supreme Court held in 2001 that noncitizens can’t be detained in immigration custody for more than six months if it is not reasonably foreseeable that they could actually be deported to their home countries. ICE’s solution has been to put people in this situation on orders of supervised release, a sort of long-term immigration parole program. These cases are the lowest-hanging possible fruit for enforcement, and they deserve the highest priority of review by qualified immigration attorneys.
Anyone who has already received a final order of removal based on deportable criminal convictions
Federal immigration law defines “conviction” much more broadly than the states do, and imposes almost unimaginably harsh consequences for offenses such as shoplifting and minor drug possession, which often don’t even carry the possibility of jail time in state courts. These consequences can be triggered not only for the undocumented but for people in every possible immigration status—including lawful permanent residency—up to citizenship.
Anyone convicted of a state or federal offense classified as an “aggravated felony” under federal immigration law
When the concept of an “aggravated felony” was introduced to federal immigration law in 1988, it included only convictions relating to murder and drug and firearms trafficking. Since then it has been expanded to include at least 50 other offenses, many of which are far less serious than the word “aggravated” might suggest.
Anyone who has missed an immigration court date or otherwise has an outstanding deportation order
It is impossible to know how many people have remained in the U.S. after receiving a removal order, but a system in which missing a single court date results in a final order has imposed millions of them even during the 18 years that I have been practicing. Anyone who believes that they might be in this category should request a complete copy of their immigration records under the Freedom of Information Act.
Anyone who has recently overstayed or violated the terms of a student visa
This category could be at special risk given the strict reporting requirements imposed on schools that participate in these programs and the special enforcement resources which have been dedicated to finding them.
YELLOW: DELAYED
Temporary Protected Status
TPS is by definition a temporary designation, but Trump is determined to end it entirely for all countries—starting with Haiti, a country whose citizens in the U.S. have been protected by TPS since the devastating earthquake of 2010. The government has collapsed since then, and the vacuum has been filled by rival criminal gangs. Haiti is by any metric even more dangerous today than it was at the time of the original TPS grant, but we can assume that Trump’s Department of Homeland Security will refuse to renew its TPS designation along with all other active designations.
This crisis will begin on March 9, 2025, with the expiration of the largest and longest-running TPS program. Approximately 241,000 citizens of El Salvador have been renewing their status every 18 months since it first became available in early 2001, and a significant portion of them live in the greater Boston immigrant communities, which my law office serves. While many of them now have adult U.S. citizen children who are able to file for them, this path is only available if they either entered on a visa or traveled on a special grant of “advance parole” while in TPS status. (The first Trump administration already put up barriers to the latter and is expected to do so again.)
Even assuming that all current TPS programs are ended—far from an inevitability given the legal roadblocks the prior Trump administration hit through its own ineptitude and open displays of racism—this will not result in immediate orders of deportation, and everyone now on TPS should be prepared to receive a notice to appear in immigration court.
Deferred Action for Childhood Arrivals
DACA has been on life support since July 21, 2021, the day that a federal judge issued a nationwide injunction against new applications. Trump has never been bullish on it himself, deferring to Jeff Sessions and Stephen Miller in deciding to rescind the program despite his reported reservations about the prudence of expelling the single most assimilated subset of the undocumented population. The Supreme Court somewhat reluctantly affirmed that Trump had unlawfully canceled the program but didn’t rule on its merits, so DACA is expected to be back before the high court in the coming term. There is no reason to presume that it will survive.
Trump has consistently taken the mainstream conservative position that protections for those brought to the U.S. as children should be up to Congress, but there is no reason to believe that finally passing the Dream Act will be a priority for the new Republican Congress either. As with TPS, DACA recession will not result in immediate orders of removal, but could ultimately initiate deportation proceedings for approximately 636,000 people who by definition each have strong ties to the U.S. and no notable criminal record.
Anyone who is now in active removal proceedings
Everyone who is not in the custody of ICE who is scheduled to appear before a federal immigration judge is entitled to remain in the U.S. until their cases have completed. They are also entitled to a full review by the Board of Immigration Appeals, a body of only 28 immigration judges responsible for every appeal from every immigration court decision in the country.
The Trump administration implemented an unpopular quota system in 2018 that pressured immigration judges to reach decisions faster, and a simultaneous assault on their union made it much more effective. Although the Biden administration has recently taken steps to protect the union, we should fully expect this interference to resume.
Fewer than 1 million of the 3.6 million people now in active removal proceedings are represented by counsel, and there is one simple way that we can all help them: Fund their lawyers.
Immigration lawyers are a finite resource. The American Immigration Lawyers Association has approximately 16,000 active members, with maybe two-thirds of those taking deportation defense cases. Immigration law is one of the most consistently complex and confusing parts of the entire legal system, and there is no right to appointed counsel in immigration court because—and I really can’t stress this enough—no one facing deportation proceedings is being charged with a crime.
Despite a massive push by both the Trump and Biden administrations to expand its deportation pipelines, the immigration court backlog of more than 3.6 million cases is now approaching the size of the entire population of Los Angeles—with just around 500 immigration judges nationwide to handle them. Based on the latest available data, the average removal proceeding in immigration court took well over two years, with at least as much time on appeal for those seeking review of their decisions by the Board of Immigration Appeals.
National advocacy groups have done their part, but the cold realpolitik of the incoming Republican-controlled government means that the only advocacy that will really matter will be in courtrooms. Anyone who is able to help with a donation should give to a local organization from this official DOJ list of pro bono legal groups. If you live in a major metro area in a blue state that already has the capacity to at least provide legal triage to its noncitizen population, consider giving further afield. Your donation to one of the very few organizations serving remote places like Oakdale, Louisiana (home of the largest immigration detention center in the country), could truly make a difference.
GREEN: WALKING WOUNDED
Lawful permanent residents and other people in lawful status with criminal convictions that have left them inadmissible for reentry
Some criminal convictions render lawful permanent residents “inadmissible” rather than deportable. As a matter of practice, this means that ICE could only initiate removal proceedings once the noncitizen tried to reenter the U.S. through a port of entry. Unlike the deportation grounds mentioned above, this is not a category of offenders that ICE will be actively looking for.
Pending visa petitions, residency applications, and waivers with U.S. Citizenship and Immigration Services
USCIS is truly the immigration deep state, and it is simply impossible to change its personnel, policies, and culture anytime soon. Trump did his best in four years with a series of harsh policy changes, and we fully expect more of the same now. Regular marriage and family visa petitions will be unaffected for the most part.
Pending applications for asylum
Trump already made major advances in dismantling the U.S. asylum system in his prior term, and much more is coming. Anyone who has already filed for protection has an absolute right to have their case heard, but the attorney general—who is responsible for the entire immigration court system within the Department of Justice—has the sole authority to make drastic changes in how the law is applied. Trump effectively removed protections for survivors of domestic violence and those being persecuted for family ties, so at a minimum anyone seeking asylum on these grounds has reason to be concerned.
NOT TRIAGE PRIORITIES
Naturalized U.S. citizens
Stripping naturalized citizens of their status is a long and intentionally difficult process in a federal district court—not an administrative immigration court—with an appropriately high burden for the government to meet. Although the incoming administration is expected to expand the size of the DOJ’s “denaturalization force,” Trump’s previous attempts in this direction hardly came out to 25 per year, and there is no reason to believe that they would get much further this time.
Birthright citizenship
Trump has promised an executive order to “end birthright citizenship,” which in practice amounts to ordering the Social Security Administration to stop generating Social Security numbers and the Department of State to stop issuing passports to children whose parents can’t prove their status at the time of the child’s birth. This order would stand in direct contradiction with the Fourteenth Amendment’s promise that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The planned order would be prospective, applying only to babies born on or after the day of the announcement, and will undoubtedly be subject to an immediate nationwide injunction from a federal court—and ultimately review by the Supreme Court—given the extreme harms of creating a new generation of stateless babies.
