In a Sunday interview with NBC News, President-elect Donald Trump repeated what is becoming one of the incoming administration’s most provocative talking points: When parents of U.S. citizens face deportation, his administration will deport the whole family together.
“I don’t want to be breaking up families,” Trump said when asked how mass deportation would impact America’s roughly 4 million mixed-status families. “The only way you don’t break up the family is you keep them together and you have to send them all back.”
Trump’s threat appears to take immigration enforcement into uncharted ground. There is no mechanism to deport U.S. citizens, regardless of their parent’s status.
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It also remains to be seen whether Trump’s bluster is just an off-the-cuff remark from someone with a hazy grasp of the details or will amount to actual policy. Tom Homan, who headed Immigration and Customs Enforcement under Trump in 2017 and has been tapped to serve as his “border czar,” made a similar claim in an interview with “60 Minutes” in October, then tried to walk back his comments in a later interview with conservative talk show host Sean Hannity.
But if Homan and Trump are serious about removing American citizen children along with their parents, they’ll face one major hurdle: ICE won’t have the authority to do so.
“This is blatantly illegal territory,” said Azadeh Erfani, policy director for the National Immigrant Justice Center. “They have no jurisdiction to deport U.S. citizens — children or adults.”
Instead, legal experts say that Trump and Homan are issuing threats to create a climate of fear while laying the groundwork for a campaign to pressure unauthorized immigrants to return to their home countries on their own, taking families that may include U.S. citizens with them.
“You cannot deport U.S. citizens,” said Kathleen Bush-Joseph, a policy analyst with the nonpartisan Migration Policy Institute. “However, when faced with the deportation of family members, families might make difficult choices about whether to leave the country with their relatives.”
In some ways, Trump’s comments simply reflect the reality of removal proceedings. Deportation has always put parents of American citizen children in the agonizing position of choosing between leaving their kids behind or bringing them to a country they had reason to leave.
“Even under current policies and practices, it’s not uncommon that U.S. citizen children are effectively deported when their parents are deported and there aren’t good options for their children,” Denise Gilman, a law professor who directs the University of Texas at Austin Immigration Clinic, told HuffPost. “We see that all the time.”
But while deportation has always threatened to either tear families apart or force American kids into removal along with a parent, having a president come to office promising to target families — especially ones with U.S.-born kids — puts the United States on a new course.
“Everybody is going to be really afraid,” Gilman said.
The Obama administration sharply blunted the impact of deportation on mixed-status families with the implementation of a prosecutorial discretion policy in 2011 that limited enforcement against unauthorized migrants in removal proceedings who did not have serious criminal records but did have significant ties to the United States, including U.S. citizen or permanent resident children, parents or spouses.
Deportations from the interior of the United States plummeted from a peak of 223,755 in 2010, Barack Obama’s second year in office, to 65,332 in his last year in 2016, largely due to prosecutorial discretion.
Trump scrapped his predecessor’s discretion policy in his first term, but President Joe Biden reimplemented it the day he took office. Trump is expected to do away with prosecutorial discretion once again next month.
With neither the resources nor the legal authority to remove U.S. citizens, ICE may explore other options. They may affix ankle monitors to unauthorized immigrants with American-born children and tell them to arrange to return to their home country on their own, according to David Leopold, a veteran immigration attorney.
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“They’ll say, ‘Come back and show us you got a plane ticket’ — it’s easier and cheaper for ICE to do it that way,” Leopold told HuffPost. “For all intents and purposes, they were deported with their parents, but you have the legal fiction of them leaving voluntarily.”
Trump’s attacks on U.S.-born children are also laying the groundwork for his broadside against birthright citizenship, Leopold said — the constitutionally protected standard of recognizing those born within the United States as American citizens.
“They are going to attack U.S. citizens,” Leopold said. “This isn’t just about immigrants anymore.”