Andrew Arthur
Subject: Deporting Illegal Aliens
Bio: Fellow in Law and Policy at the Center for Immigration Studies. Former immigration judge and a former prosecutor with the INS
Transcript:
Larry Bernstein:
Welcome to What Happens Next. My name is Larry Bernstein. What Happens Next is a podcast which covers economics, politics, and culture.
Today’s topic is Deporting Illegal Aliens.
Our speaker is Andrew Arthur from the Center of Immigration Studies. Andrew is a former immigration judge and a former prosecutor with the INS. I want to learn from Andrew about what due process is required in deportation proceedings for individuals who are in the US illegally. I also want to find out what the impediments are to expedite the legal process.
Andrew can you please begin with six minutes of opening remarks.
Andrew Arthur:
In the U.S. Constitution, the Fifth Amendment clause states “No person shall be deprived of life, liberty, or property without due process of law.” In 2001, the Supreme Court recognized that the due process clause applies to all persons within the United States including aliens, but the nature of that protection may vary depending upon status or circumstance. Through case law and precedent with the Supreme Court, the alien has been courted a generous and ascending scale of rights as he increases his identity within our society. So consequently, when we talk about the constitutional rights that are due to foreign nationals who are deemed aliens under the Immigration and Nationality Act, we refer to a spectrum of rights that grow as the aliens’ status and equities in this country grow. The best synopsis of what due process requires in removal proceedings comes courtesy of the Ninth Circuit, where an alien is given a full and fair opportunity to be represented by counsel, prepare an application for relief, and to present evidence in support of that application.
Generally, aliens receive due process in removal proceedings before immigration judges in the nation's immigration courts. There are about 700 immigration judges currently hearing cases today. Immigration judges work for the Attorney General. When that respondent is served with the charging document to appear that lays out the government's factual allegations in the grounds of removability.
At the outset, respondents in those proceedings are informed of their rights. The immigration judge will then hold what's called a merits hearing. Either party can appeal the immigration judge's decision to the Board of Immigration Appeals.
If a respondent is dissatisfied with that board decision, the respondent could apply with the circuit court. However, with the Supreme Court's explanation that the degree of process due varies upon the status and circumstances of the alien, Congress has also created something called expedited removal for aliens at the borders and the ports who lack proper admission documents. For more than a hundred years, the Supreme Court has made clear that aliens who are at the border or at the ports have only those rights that Congress has given them, and Congress decided back in 1996 to restrict those rights. Immigration officers can order aliens subjects to expedited removal deported without referring them to an immigration judge and without any further review, unless the alien claims the fear of persecution if returned. In that case, the alien is referred to an immigration officer for a credible fear interview to determine whether the alien has a significant likelihood that they're going to be eligible for asylum.
Larry Bernstein:
Andrew, tell us about your background.
Andrew Arthur:
I was a trial attorney for the former Immigration and Naturalization Service. I argued deportation, exclusion cases and removal cases before immigration judges, and then I became an Associate General Counsel at the INS. My background is immigration but my focus has been national security. I've seen it as an attorney, a judge, and a person who wrote the rules when I was on The Hill.
Larry Bernstein:
The most discussed case on immigration is Kilmar Abrego Garcia who is currently in El Salvador. Why is this case of such public interest?
Andrew Arthur:
Mr. Abrego entered the United States illegally. He was arrested in 2019. He was detained by ICE pending a removal hearing. Two judges heard Mr. Abrego's case, the first judge concluded that he was a verified MS 13 member that he posed a danger to the community. His case was then referred over to another immigration judge. The judge denied his asylum claim because he didn't apply within a year of his entry into the United States, denied his torture convention claim because it didn't satisfy the standards, but granted him statutory withholding. I would not have reached the same conclusion that the judge in that case did. It looked like the harm that he feared if returned home would've been extortion and not persecution that would satisfy the statutory withholding standard. But more importantly, in the middle of that decision, the judge switches from talking about El Salvador to talking about Guatemala. And he found that ICE hadn't shown change country conditions in Guatemala such that he could return safely.
I think the confusion in this case stems from that decision. March 2025, he was arrested again by ICE, he was removed to El Salvador and his counsel filed a suit with the Federal District Court. And what they argued was that he had been removed in error that he had been granted withholding of removal to El Salvador. They asked that the United States government allow him to go to the US Consulate in San Salvador to make his way back to the United States.
Judge Zennsi went one step further and she required the Department of Homeland Security to return Mr. Abrego to the United States by 11:59 PM on April 7, 2025. And that's a problem because Mr. Abrego, as soon as he landed in El Salvador, was placed in a prison facility for gang members. It's important to note when we deport people from the United States, we don't tell the country that we send them to put them in jail or not put them in jail. It appears in this instance that it was the Salvadorian government's decision, but because the government's admitted that it made a mistake, a lot of people think that the government should wave a magic wand and bring him back, but that requires diplomacy. Federal courts have very little authority to force the President of the United States to engage in diplomacy.
Larry Bernstein:
Why is this of such political interest?
Andrew Arthur:
There was pushback against Trump immigration policies the first time around. Donald Trump says that immigration is the reason why he got elected the second time. There are people who view this through prism of fairness. It's only fair that this guy be allowed to come back to the United States because he had been granted statutory withholding. Abrego represents what Donald Trump talked about on the campaign trail that there are individuals who come to the United States illegally who are gang members who commit crimes. And yet the Biden/Harris administration didn't do anything to remove those people. So, he's a poster boy for both sides.
Larry Bernstein:
139,000 aliens have been deported in this Trump administration first 100 days. A rough math, you're looking at something like 500,000 a year and that's more than Obama achieved an average for his two terms, which is 375,000 a year. How do you think about the pace? Does the current process of administrative judges and hearings, are we at a limit? Do we need more judges? What are the limitations to proceeding with a faster clip?
Andrew Arthur:
Congress needs to act with respect to resources. We have about 700 immigration judges and they're handling a docket of 4 million cases and that is an overwhelming backlog. The average case takes about three years to complete, if the respondents all show up in court, and about a third of them don't show up for court, so we need more judges, ICE attorneys, and border patrol agents. We need more detention facilities because detention is key to taking criminal aliens off the street and remove them.
One of the things that Joe Biden talked about was that he needed Congress to act if he was to secure the border, as we've seen in the first months of Trump, that wasn't true. The second Trump administration is taking a separate tack to encourage people who are here unlawfully to leave.
The Department of Homeland Security has launched a $200 million ad campaign to encourage people to leave the United States voluntarily. In addition, the Trump administration is proposing paying for the plane tickets of people who want to leave and giving them a thousand dollars stipend per individual to leave the United States voluntarily. And from a cost savings perspective, that's wise because the average deportation in this country from investigation, arrest, detention, prosecution of removal costs just over $17,000 per alien. Those people wouldn't be under final orders of removal if they took them up on that offer, which means that it would be more likely that they could reenter the United States legally in the future.
Larry Bernstein:
If you end up getting deported, is it very difficult to come back?
Andrew Arthur:
By law, you're supposed to be out for anywhere between three and ten years.
Larry Bernstein:
The suggestions you've had for additional funding, like more judges, the marketing campaign, the stipends to the individuals, this must be a part of the budget. Do you know if that would be capable with reconciliation or is this have a risk of filibuster?
Andrew Arthur:
It would absolutely fit into the reconciliation process. Congress currently has $40 billion for additional border infrastructure, fencing the wall, in the House version of the reconciliation bill. Tom Homan has said he needs about $187 billion to carry out his plans. Nearly every Republican and a surprising number of Democrats recognize that border security is willing to fund through that process. And the important thing about reconciliation areas is that it doesn't require 60 votes to get past the filibuster in the Senate. It only requires 51, but it also must be directly germane and that spends or saves money. You can't simply make broad policy in the reconciliation process.
Larry Bernstein:
How do you see this playing out?
Andrew Arthur:
The high watermark that we had for removals from the United States was set back in 2012. Under the Obama administration there were about 400,000 removals. If you couple that with 600,000 potentially more individuals leaving the United States voluntarily you can easily get to a million a year.
Larry Bernstein:
There's a stock and flow issue. The flow which had been quite high during the beginning of the Biden administration was significantly reduced in the final year of the Biden administration and the first hundred days of the Trump administration. What are we looking at?
Andrew Arthur:
When you talk about the flow right now, we are running at numbers at the southwest border that we haven't seen since the Johnson administration in 1968. The number of pending cases in Immigration Court backlog drop in February and March for the first time since 2008. When you talk about the people in the United States, the Center for Immigration Studies where I work conservatively estimates that there are about 15 to 16 million individuals here unlawfully.
Larry Bernstein:
Even at a million a year you're talking about 16 years of turnover.
Andrew Arthur:
Some of those people in removal proceedings are going to be allowed to stay legally. Some will decide to go home. It's a very common phenomenon in American history.
Larry Bernstein:
This Abrego case reflects tension between the judiciary and the administration. The judge made some demands and felt that the Trump administration was being dishonest or disingenuous about not sending the plane back and demands that the individual be returned. Trump's meeting with the President of El Salvador and not pushing hard enough to meet the judge's objectives. To what extent is this case the administration pushing back against the specific judge or more generally the judiciary as it relates to defining the constitutional balances between the executive and the judiciary?
Andrew Arthur:
When you talk about the order of the judge in Maryland with respect to Abrego Garcia, she is demanding that the U.S. government engage in diplomacy with a foreign government, and that's probably well in excess of the authority of any court, which I think is why the Supreme Court backed off and said the U.S. government has to facilitate his return but not necessarily effectuated.
If you put this in a different context, consider the case of Brittany Griner who was a basketball player who went to Russia, who was detained in prison in Russia. She was a United States citizen, and yet we had to engage in significant diplomacy and swap out an arms dealer that Russia wanted to get her back. Here we're talking about a Salvadoran citizen who is sitting in a Salvadorian jail.
Larry Bernstein:
I want to go back to your opening remarks about due process. There may be concerns among those who are looking to deport more people that due process, if more broadly defined, will restrict the ability to deport large numbers of people. But from what you're describing, the due process that's offered to the aliens isn't that problematic. If we're currently doing 139,000 in 100 days. You double the number of judges; you could double those numbers. Should we look at the current definition of due process as offered by Congress and accepted by the judiciary as something that's workable for large numbers of people?
Andrew Arthur:
Congress can always restrict the process that is available. When I was on Capitol Hill, we restricted the ability of the courts to hear certain categories of immigration cases. They can also refine the law to shorten the amount of time that individuals must present their cases. Continuances are probably the biggest impediment to quick decisions in the immigration courts, and in immigration every delay works to the advantage of the alien who's attempting to avoid removal from the United States.
There are things that Congress can do, but it all comes back to resources. The average non-detained case takes about three years in immigration court. If we expand detention, we can adjudicate cases much more quickly. People who deserve protection who merit relief will be allowed to stay, but most of them don't, and those individuals will have to leave the United States. This is an area of the law that has been underfunded for decades.
Larry Bernstein:
Next topic is sanctuary cities. Certain jurisdictions have pre-announced that they're going to thwart ICE's ability to enforce the deportations, and we saw a Wisconsin Judge interfere with ICE's arrest of an individual. How should we think about the role of sanctuary cities and non-compliance with the federal government's desire to enforce these rules?
Andrew Arthur:
If I go back to my early days when I was a young trial attorney in San Francisco, California, there was no interference by the state or localities in that removal process. In fact, immigration officers would go through the Alameda County Jail every day looking for criminal aliens to take into custody and put into removal proceedings. It's only since under the Biden administration that we've had states and localities attempt to interfere in the immigration process for purely local political reasons. It is a huge impediment. It would be a lot easier if every time that a local cop picked up somebody who had entered illegally, if they were to call ICE, put them into removal proceedings and remove them.
Here's the ironic thing. Usually when these sanctuary laws are adopted, they're done under the guise that they're being done to protect immigrants in their community. We consider these people to be our neighbors, and we want to protect them, but most crime that is carried out by aliens in the United States is carried out in immigrant communities.
Larry Bernstein:
If there were to be a roundup, would that mean that these people would end up in detention until they could prove that they deserve to stay? How does that work?
Andrew Arthur:
The general way that happens is in the work site context. ICE will first do a paperwork audit. They'll ask for the I-9, which is a form everybody must fill out when they start a job, and they will look for and find the ones that have bogus documents. They will either ask the employer if they can interview specific people in connection with that, or they'll get what's called a Blackie's warrant from a federal judge where they will show up and start asking the workers about their immigration status in the United States, and they'll take those individuals into custody. But if the idea is that you would have some roundup in a neighborhood, that's not going to happen because you don't have reasonable suspicion that the people that you talk to are here unlawfully and you will trigger a different constitutional issue.
Larry Bernstein:
There was hope that the E-Verify system would be critical as part of the original congressional legislation on how to limit the number of people coming into the United States. Why did it fail and how could Congress fix it going forward so that the E-verification system would work?
Andrew Arthur:
In the 1986 Act the trade-off for amnesty is that we would have employment verification on the work site. In 1986, for the first time in American history, hiring an alien who wasn't authorized for employment became a civil offense and a criminal violation. But at the time that law was passed in 1986, we didn't have the internet. The early 2000s various administrations created E-Verify, which enables employers to voluntarily sign up to verify the employment eligibility of the individuals for employment in the United States. We couldn't have done it back in 1986 because it wasn't feasible. Today it's practical and works exceptionally well, but it's not mandatory.
Larry Bernstein:
Trump sat down with the leader of Mexico and negotiated terms, and then the number of border crossings collapsed. What happened? What is it that Sheinbaum agreed to? What is she doing differently that has resulted in a change of the border?
Andrew Arthur:
In December 2022, then DHS Secretary, Alejandra Mayorca and then Secretary of State Tony Blinken went to Mexico and sought the assistance of the Mexican government to stop the flow of migrants north through Mexico. Most of the migrants that we get at the border aren't from Mexico. They are from countries south of Mexico, and they must transit through Mexico to get to our southwest border. They got the assistance of then Mexican President Lopez Obrador to put National Guard troops along those transit route to the United States to cut down on the number of people coming here because there was an election coming up and it looked bad to have 250,000 people apprehended at the southwest border, which is what happened in December 2022.
After Donald Trump took office. Mexico left that process in place, but he obtained the agreement of President Claudia Scheinbaum of Mexico to take 10,000 National Guard troops and put them along the southwest border to deter individuals from entering illegally.
I was in Tijuana, Mexico, I crossed from San Diego about a month ago, and the first government official that I saw was a uniformed soldier making sure that individuals aren't coming over the walls to deter people from coming into the United States illegally. This is absolutely crucial. It's not in Mexico's best interest to have third country nationals transiting through Mexico. One, it's disorderly. Mexico is a sovereign country and they like order, but two, it breeds corruption. In a country that has long had a problem with corruption, the smugglers and the migrants themselves pay off corrupt officials, which undermines the ability of Mexico to control their own officers. So, it's in the best interest of Mexico to limit the number coming into the United States other than Mexicans.
Larry Bernstein:
What's your best guess as to how this is going to play out?
Andrew Arthur:
I think that the Trump administration is going to crack down on the unauthorized population in the United States. Within two years, that population will drop back to a traditional level of 11.3 million, which is the number that we have had for as long as I can remember. Donald Trump is going to want to get concessions out of Congress to change the immigration system. Right now, about 60% of all the green cards that are given out are to people based upon familial relationships. You can petition to get your wife or kid a green card, but you can petition to get your parents and your brothers and sisters’ green cards here too. It doesn't really do anything to ensure that immigration is going to be an economic driver in the United States.
The United Kingdom, Canada, Australia and New Zealand favor skills-based immigration. And a lot of what happens is going to hinge on what happens in the 2026 midterm elections.
Larry Bernstein:
I end each podcast with a note of optimism, what are you optimistic about as it relates to this immigration process?
Andrew Arthur:
Twice in the month leading up to the president's inauguration, I testified before the Senate Homeland Security Government Affairs Committee and the Judiciary Committee. At both of those hearings, I heard senators say that they understood why border security was important. The last four years have been a great tutorial on the importance of border security, and that we have now moved beyond the idea that we can have semi-open borders. And in my home state of Maryland, we sail a lot, and we know that before you can get all the water out of the boat, you must patch the side. Border security is patching the side of the boat. It's going to make it a lot easier for us to know who exactly remains in the United States, and it also gives us a path forward for how we're going to deal with them.
Larry Bernstein:
One final question, how do you explain the Biden administration's decision to allow for this open border? I just don't understand it. What were they thinking?
Andrew Arthur:
It's probably the most common question that I have received over the last four years. There was a memo that was issued by the Biden administration in September 2021 that explained why it was going to use its prosecutorial discretion to allow people to be released into the country who were supposed to be detained. And what it explained was the Biden administration didn't think the immigration laws were fair and equitable, and they equated them to the darkest periods of discrimination in our nation's history. And rather than working through Congress to make the law fair, the Biden administration simply ignored the law that Congress had written.
Larry Bernstein:
Thanks to Andrew for joining us.
If you missed the last podcast, the topic was Investing with Uncertainty. Our speaker was Myron Scholes who is the Frank E. Buck Professor of Finance, Emeritus at Stanford Graduate School of Business. Myron won the Nobel Prize in Economics for his groundbreaking work in Options Theory. Myron explained why uncertainty is core to investing. He discussed why popular investment strategies that optimize the portfolio with 60% in equities and 40% in debt may be suboptimal. We also reviewed Warren Buffett’s investment success. We reviewed his reinsurance business as well as his investment in Burlington Northern Railroad to take advantage of future CapEx opportunities. We also analyzed Berkshire Hathaway’s very large purchases of convertible preferred stock in firms that were desperate to issue stock.
You can find our previous episodes and transcripts on our website whathappensnextin6minutes.com. Please follow us on Apple Podcasts or Spotify. Thank you for joining us today, goodbye.
Check out our previous episode, Investing With Uncertainty, here.
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