No election in modern times has elicited as much fear and loathing within a specific community than the election of Donald J. Trump has among America’s unauthorized immigrants.
The shock that gripped immigrants and their advocates in the immediate aftermath of the election has given way to an unprecedented mobilization in anticipation of Trump’s inauguration on Jan. 20.
At least 20 cities nationwide, including Santa Ana, have either reaffirmed or established themselves as sanctuaries for unauthorized immigrants; advocates are lobbying to keep the California’s gang database out of the federal government’s hands; and immigration lawyers are fielding a flood of calls.
Also, California lawmakers on Monday announced an effort to increase protections for immigrants during Trump’s presidency, including a proposal for a state-run legal aid program to offer representation in immigration proceedings.
Yet despite all of this action, there is still confusion in communities over what Trump can actually do, and what protections state and local laws and policies provide for unauthorized residents.
In hopes of providing a clearer picture, here’s a rundown of the measures Trump can take (without the help of Congress) after he takes office, and how state and local governments can respond.
What’s in Trump’s Toolbox
Canceling President Barack Obama’s executive orders would be, administratively, the easiest thing for Trump to do when he enters the Oval Office.
For starters, Trump, who promised on the campaign trail that he would cancel a deferred action program for unauthorized immigrants who came to the U.S. as children – known as DACA – could end that program entirely.
Obama has also used his executive power to selectively enforce immigration law. His administration argues that the government should spend its limited resources on deporting serious criminals rather than people who aren’t a threat to public safety or national security.
The Migration Policy Institute, a think-tank that studies the movement of people worldwide, estimates there are 820,000 unauthorized immigrants with criminal records currently in the United States, although only 35 percent have felony convictions that would make them a priority for deportation under Obama.
The Trump Administration could decide to widen the net and, for example, go after all immigrants who have committed a crime.
“The administration could easily revise those priorities, and include categories [like] people who have just been charged and not convicted, people with immigration violations or nuisance crimes,” said Faye Hipsman, policy analyst on U.S. immigration law for the Institute.
Investigating, tracking down and deporting immigrants is an expensive task. One estimate by the Center for American Progress puts the cost of deportation at $10,070 per person, or $114 billion for all 11.3 million unauthorized immigrants in the United States. The right-leaning American Action Forum, meanwhile, estimates that it would cost $400 to $600 billion to immediately deport the same number of people.
In addition to detaining immigrants while they wait to be deported, the government also needs to conduct a hearing process that is already bogged down by a huge backlog of cases.
Trump does have some ability to free up money for the hiring of more immigration judges or U.S. Immigration and Customs Enforcement (ICE) officials. However, if he wants to significantly expand ICE’s current capacity of 400,000 deportations a year, he would need to ask Congress for a lot more funding.
Why Trump Needs Local Law Enforcement
That cost is one of the reasons why the Trump administration’s best bet to crack down on illegal immigration is by working with local law enforcement to target people with criminal records.
The main way that ICE has done this in the past is by matching the fingerprints of people booked into local and state jails with Department of Homeland Security (DHS) and FBI databases.
When they find a match, ICE will typically issue a detainer asking local police to hold an individual beyond their release date so that immigration authorities can pick them up. Detainers are not warrants or court orders, and therefore are not mandatory.
Cooperation from local agencies “is a force multiplier,” said Hipsman.
But without the willingness of state and local jails to notify ICE when an individual in their custody is about to be released, it will cost the agency much more to track down and detain immigrants.
Secure Communities, a program that began under President George W. Bush and continued well into Obama’s second term, used that fingerprinting process to create a pipeline between local jails and immigration detention centers.
Before that, the government deported criminals through the Criminal Alien Program and 287(g), a program named after a section of law that allows ICE to delegate local authorities with the power to help them enforce immigration law.
Between October 2008 and February 2015, ICE deported 406,441 non-citizens from the country. That includes 135,726 people with serious convictions like murder, rape and sexual abuse of a minor.
But that program, which Trump has praised, has also been criticized for deporting a large number of people who committed minor crimes. Between 2008 and 2013, the top crime associated with deportations was immigration violations, followed by traffic violations and drug crimes, according to CNN.
What Can State and Local Governments Do?
Since Secure Communities, a growing number of cities have made ICE’s job harder by limiting how their law enforcement agencies can work with immigration authorities.
In 2014, California passed the TRUST Act, which bans local law enforcement from holding immigrants for ICE unless they have committed a serious felony.
More than 300 cities and counties nationwide have similar policies, including: Boston, New York, Philadelphia and New Orleans. The conventional wisdom of this approach is that by not participating in federal immigration enforcement, local police can avoid a situation where immigrant communities stop going to the police for help.
That matters because an estimated 53 percent of the 11 million unauthorized immigrations in the country live in states or cities with these kinds of noncooperation policies, according to the Migration Policy Institute.
On Tuesday, Santa Ana became the first and only city in Orange County that has declared itself a sanctuary city. While the declaration itself is largely a symbolic gesture that doesn’t come with any new policies, City Council members have signaled they will also phase out their contract with ICE to house detainees.
Otherwise, the Santa Ana Police Department already withholds information from ICE and does not honor detainer requests, said Police Chief Carlos Rojas.
Similarly, while Anaheim does not have a formal “sanctuary” policy, the police department does not detain individuals on behalf of ICE, provide federal authorities with information about residents, or check the immigration status of people at traffic stops or in custody, said spokesman Daron Wyatt.
Jessica Vaughn, director of policy for the Center for Immigration Studies, believes that despite these sanctuary cities, the Trump Administration can rebuild its relationships with local law enforcement in other places.
The Center is a lobbying group that advocates for decreasing immigration and more stringent enforcement.
Vaughn pointed to a 2015 poll conducted by the Institute for Governmental Studies at UC Berkeley that found 74 percent of the 1,098 Californians polled oppose policies that allow local authorities to ignore immigration detainers.
“Between the public and the law enforcement community, ICE would find a lot of cooperation if it tried,” said Vaughn.
And, in the county of Orange, the feds already have a cooperative partner.
The Orange County Sheriff’s Department is one of 32 law enforcement agencies nationwide that has a formal contract with ICE under 287(g), a program where local law enforcement is delegated the authority to identify immigrants with a criminal record and notifies ICE of their release date.
Sheriff’s spokesman Lt. Mark Stichter said the department’s policy prohibits the “arrest of detention of suspected undocumented residents solely for violation of immigration laws.”
The Sheriff’s department helps ICE by notifying them when an inmate is about to be released, but doesn’t detain those individuals on behalf of immigration officials. Before the TRUST Act, they would honor those detainers.
Stichter said the department otherwise doesn’t ask people for their immigration status.
The Probation department also provides information about probationer’s whereabouts, criminal history and personal information like their home address, said spokeswoman Jennifer Palmquist, but only when ICE specifically requests the information.
Both those policies are the result of major changes sparked by by protests from local activists and major shifts in the law brought on by a federal court case and the TRUST Act.
In 2014, the probation department ended its practice of honoring ICE holds for unauthorized adults and minors. Also, probation has since ended the practice of checking the immigration status of juveniles in their custody and reporting those individuals to ICE if they were suspected to be unauthorized.
What Can Trump Do to Sanctuary Cities?
There’s no real legal significance to the term “sanctuary city.” It typically refers to policies, formal or informal, that say government employees can’t report the presence of unauthorized immigrants to federal authorities simply because of their immigration status.
In a growing number of cities, it also means local law enforcement will not cooperate or give information to ICE.
Trump’s threat to cut all federal funding for sanctuary cities and states is not likely to pass legal muster, but it’s possible that he could target grants for law enforcement from the Department of Justice and Department of Homeland Security.
The National Immigration Law Center estimates that the state of California could stand to lose $70.6 million in federal grant money from four major grant sources if Trump follows through with his threat.
The city of Santa Ana, for example, currently receives $6,346,782 from the Department of Justice to fund community policing other programs, while the Department of Homeland Security provides $4,965,000.
Congress could also try to pass legislation limiting funding for sanctuary cities. Lawmakers have tried to pass similar legislation over the past year without success.
Melissa Keaney, staff attorney for NILC, said a number of immigrant advocacy groups believe they have a strong legal argument against Trump going after sanctuary cities.
“Immigration enforcement is a federal responsibility and so (…) any attempts to strong-arm local agencies into becoming involved would violate the tenth amendment,” Keaney said.
Vaughn believes taking away funding is not only feasible, but will cause many people to reconsider whether sanctuary policies are worth the blow.
“Many jurisdictions will have to choose between federal funding and sanctuary policies. It remains to be seen whether the public will approve of those sanctuary policies when they become very expensive,” said Vaughn.
Correction: A previous version of this article misspelled Melissa Keaney’s last name.
Contact Thy Vo at firstname.lastname@example.org or follow her on Twitter @thyanhvo.