President Elect Donald Trump will not be able to deport millions of people.

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Pew Research Center (PEW) claims that the United States has 11 million undocumented aliens, but my examination of PEW’s methodology has persuaded me that its estimates of the undocumented population are unreliable. I believe that the actually number is much larger. In any case, I am sure it is at least that large.

Will President Elect Donald Trump be able to deport 11 million undocumented aliens?

Every alien accused of being deportable has a statutory right to a hearing before an immigration judge. The immigration courts always have had big backlogs, and the backlogs have continued to grow. The immigration court completed 181,575 cases in FY 2015, which is impressive for a court that only has 273 judges. Nevertheless, the number of cases awaiting resolution before immigration judges as of the end of October 2016, was 521,676. To put this in perspective, this was an average of 1,910 cases for each of the 273 immigration judges. The average wait time for a hearing as of the end of October was 675 days, which is a couple of months short of two years.

TRAC Immigration

If we add 11 million cases to the immigration court backlog, the new count would be 11,521,676. Even if no additional aliens enter the United States unlawfully, the average for each of the 273 immigration judges would increase to 42,204 cases, and the average wait time would increase to 14,915 days, which would be approximately 41 years. The number of immigration judges could be increased, but the increase would be limited by the availability of lawyers who are qualified to become immigration judges and willing to do so. Let’s suppose that the immigration court is tripled in size to 819 judges. The average wait time for a hearing would be reduced to 4,972 days, which would be approximately 13.6 years, still much too long.

Right to Appeal a Deportation Order

Aliens who have been found deportable by an immigration judge can delay the finality of their deportation orders by appealing to the Board of Immigration Appeals, and they cannot be deported while their appeals are pending. The Board, however, is not a statutory body. It was created by federal regulations, which specify its jurisdiction and powers, and the president can promulgate new regulations to eliminate the Board. But the Board is needed to reverse the mistakes that immigration judges make and to maintain consistency in the way the law is interpreted and applied. The Board received 284,667 cases in FY 2015 and completed 262,293, which is an impressive number for a Board that only has 17 members. Nevertheless, this left a pending case load of 16,945 cases. The Board’s work could be done more efficiently by replacing it with an immigration court made up of federal judges with limited jurisdiction, but that would just reduce the delay from appeals, not eliminate it, and it would take a while to establish and staff such a court.

President Elect Donald Trump has two alternatives.

When the impossibility of deporting 11 million undocumented aliens becomes apparent to President Elect Trump, he can press ahead anyway and fail miserably. Or, he can persuade the republican controlled congress to establish a legalization program that would reduce that number to a manageable level and foster better relations between the republicans and the immigrant community. This is the IRCA wipe-the-slate-clean and-start-over deal which was the basis for the last comprehensive immigration reform bill. The legalization program’s eligibility requirements could be drafted to exclude aliens who do not believe in our Constitution, who support bigotry and hatred, or who are undesirable in any other way he wants to specify; and make legalization available to qualified undocumented aliens who would be expected to flourish in our country and to embrace a tolerant American society. And extreme vetting could be required. Which alternative do you think he will choose?

Start the legalization program with DACA participants.

My suggestion is to start the program with children in the Deferred Action for Childhood Arrivals (DACA) Program. In addition to the availability of information about them in our public school system and elsewhere in the United States, they are the most sympathetic group. They are completely innocent of any wrongdoing. They did not choose to come here in violation of our laws. They were brought here by their parents. They would be the most Americanized of all of the groups of undocumented aliens. And, a bill for such a legalization program already exists that could be modified to satisfy President Elect Trump’s eligibility criterion, the Dream Act, which has had broad bipartisan support.

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