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This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

Alert commenters pointed out that our recent analysis of Project 2025’s immigration proposals suffered from a defect: Former President Trump has distanced himself from Project 2025.

In this advertorial, we’ll try to analyze his platform more directly, and then discuss practical issues with its implementation. (Our promised analysis of President Biden’s immigration proposals will come in a fortnight.)

The 2024 Republican Party Platform’s section on immigration is short enough to be printed here in full.

Begin Largest Deportation Program in American History

President Trump and Republicans will reverse the Democrats’ destructive Open Borders Policies that have allowed criminal gangs and Illegal Aliens from around the World to roam the United States without consequences. The Republican Party is committed to sending Illegal Aliens back home and removing those who have violated our laws. […]

Common Sense tells us clearly, in President Trump’s words, that “If we don’t have a Border, we don’t have a Country.” Restoring sensible Border Security and Immigration Policy requires many steps, all of which would have been and indeed were taken for granted by prior Generations as obviously necessary and good. We must secure our Southern Border by completing the Border Wall that President Trump started. Hundreds of miles have already been built and work magnificently.

The remaining wall construction can be completed quickly, effectively, and inexpensively. We must also vigilantly check those who enter our Country by other routes and ensure that no one can enter our Country who does not have the Legal Right to do so, and we must deport the millions of illegal Migrants who Joe Biden has deliberately encouraged to invade our Country. We will start by prioritizing the most dangerous criminals and working with the local police. We must not allow Biden’s Migrant Invasion to alter our country. It must not stand. Under the Trump Administration and a Republican Congress, it will be defeated immediately.

The platform calls forthrightly for the deportation of millions, so it’s worth considering how that would work in practice.

Question: How Many People Are We Talking About?

There are two unknowns here. The first is the number of unauthorized migrants in the United States; President Trump has offered an estimate of 18 million, with official records showing just north of 11 million, as of 2022.

The second unknown is how many people a Trump administration would actually target for deportation. The “largest deportation program in American history,” to date, was the remarkable Operation Wetback [1], through about 1-1.5 million Mexican nationals were deported by the federal government during the Truman and Eisenhower administration. Deporting the same number today would reduce the number of unauthorized migrants in the United States by about 10%.

Question: Do We Have the Resources to Do It?

Under current law, the answer is certainly not. The federal government funds 41,500 “beds” for detention of immigrants per day at the moment. It is common for migrants to remain detained for months while litigating their cases in immigration court. Assuming, optimistically, that the federal government could remove each detainee within 90 days, the throughput of the system would be 164,000 per year — not remotely fast enough to accomplish the Trump Administration’s goal.

Many commentators — some of whom, like ICE Director John Sandweg and DHS Secretary Napolitano, are former immigration officials in Democratic administrations — have pointed out that the current system could not produce millions of deportations. This is correct, as far as it goes, but if Congress actually passed enabling legislation to fund additional detention facilities, amended the Immigration and Nationality Act to restrict the due process rights of non-citizens, and funded the Immigration Courts sufficiently, higher numbers are certainly possible.

Question: What Would Happen in Federal Court?

The first Trump Administration did not have a notably good track record defending its immigration policies in federal court. A second Trump Administration, if it attempted a program of mass deportation, would face even more serious litigation challenges. Our best guess is that any program of mass deportations would be immediately enjoined in federal court.

This raises, of course, the question of whether a new Trump Administration would comply with judicial orders. We think there is reason to doubt that. If a second Trump Administration felt unconstrained by judicial review, and were able to obtain sufficient funding from a compliant Congress, a program of mass deportations is certainly possible.

As always, we are grateful for your questions and comments, and will do our best to respond.

[1] We regret the use of this term, which is an offensive slur, but include it as a matter of historical accuracy.

This sponsored column is by Law Office of James Montana PLLC. All questions about it should be directed to James Montana, Esq., Janice Chen, Esq., and Austen Soare, Esq., practicing attorneys at The Law Office of James Montana PLLC, an immigration-focused law firm located in Falls Church, Virginia. The legal information given here is general in nature. If you want legal advice, contact us for an appointment.

With the 2024 campaign in full swing, we want to provide ARLnow readers with overviews of both candidates’ proposals concerning immigration law and policy.

This week, we’ll review the Trump campaign’s (unofficial) immigration policy platform, as laid out in the Project 2025 Presidential Transition Project. We’ll first tell you what they say they’ll do — and then offer our educated guess about whether each candidate can actually deliver on their respective promises. Stay tuned next week for our review of the Biden Administration’s immigration policy platform — that is, of course, assuming that President Biden stays in the race.

First Proposal: Dismantle and Reconstitute the Department of Homeland Security as an Enforcement Agency

The Mandate for Leadership (MFL) starts with a simple proposal: break up DHS and reassemble it. In essence, the MFL envisions a new enforcement-focused agency with the following components (current departments at right, in parentheticals):

• Customs and Border Protection (DHS)
• Immigration and Customs Enforcement (DHS)
• Office of Refugee Resettlement (Department of Health and Human Services)
• Immigration Courts (Department of Justice)
• Office of Immigration Litigation (Department of Justice)

The MFL suggests that the following agencies currently housed within DHS be split and reallocated as follows:

• FEMA goes to the Department of the Interior
• The U.S. Coast Guard goes to the Department of Justice or the Department of Defense
• The Secret Service be split between the Department of Justice (protective operations) and the Department of the Treasury (counterfeiting and other financial crimes)
• The TSA will be completely privatized

Congress would have to act for these recommendations to be put into action, so the plausibility of this reorganization depends on the composition of Congress.

We would like to note one item which hasn’t received enough attention: under this reorganization, all government components of the U.S. immigration courts — prosecutors, judges, and appellate litigators — would be subject to the authority of a single Cabinet-level official. This would help the Trump Administration to exert pressure on the immigration courts to serve as implementers of policy, rather than independent adjudicators of law.

Second Proposal: Eliminate T and U Visas

The MFL’s proposal for T and U Visas is simple: eliminate them, because “victimization should not be the basis for an immigration benefit.”

T visas, under the current law, are available for victims of human trafficking; U Visas, under current law, are available to victims of qualifying crimes (generally, serious felonies) who cooperate with law enforcement in the prosecution of the perpetrators.

The MFL proposes that S visas (currently designated for witnesses) be used as a substitute for U and T visas in the most serious cases. This would result in a quantitatively enormous reduction, because, under current law, S visas are restricted to 200 per year in ordinary criminal cases and 50 per year in terrorism-related cases. Under current law, 10,000 U Visas are available annually, and 5,000 T Visas are available annually.

Would this work? Probably yes, in practice. Although both T and U Visas are available as a matter of statute, a new Trump Administration could simply decline to issue them if Congress doesn’t cooperate with legislation.

Third Proposal: Delegate Border Shutdown Authority to the Secretary of Homeland Security

The MFL proposes that, “whenever the Secretary of Homeland Security determines that an actual or anticipated mass migration of aliens en route to or arriving of the coast of the U.S. presents urgent circumstances requiring an immediate federal response,” the Secretary may issue rules without following the ordinary requirements of the Administrative Procedure Act to prevent large numbers of people from crossing the border.

Would this work? Probably not over the long term. The Federal judiciary is generally skeptical of administrative rule-making outside the normal rule-making process. (This is how the Trump Administration’s attempt to repeal DACA was struck down by the U.S. Supreme Court.)

Fourth Proposal: Tighten Asylum Rules and Impose a Fee on Asylum Applications

The MFL proposes a large number of changes to current asylum law and practice, including eliminating the Particular Social Group ground for asylum, raising the credible fear standard to a much higher level, imposing a fee on all asylum applications, and codifying the previous Trump administration’s asylum bars and third-country transit rules.

Would these work? It’s hard to say, because each one is subject to separate potential legal challenges. In general, the proposed changes are incompatible with current U.S. law and treaty obligations, so these changes would, in the main, require an act of Congress.

There’s more — much more! — in the MFL. We encourage you to read for yourselves and make your own judgment about the immigration policies of a potential Trump Administration.

As always, we are grateful for your questions and comments, and will do our best to respond.