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Lawfare Daily: What To Expect on the Immigration Front in Year 2 of Trump's Second Term
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- [00:00]
Aaron Reichland Melnick
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- [00:50]
Aaron Reichland Melnick
So I think you will see an expansion of enforcement, more work site raids, potentially more large scale operations in American cities, but it remains to be seen. But in general this will give them the ability to be more places at more times, something that has clearly been a challenge for them so far.
- [01:09]
Eric Columbus
It's the Lawfare Podcast. I'm Eric Columbus, senior editor with Aaron Reichland Melnick, who is a senior fellow at the American Immigration Council.
- [01:22]
Aaron Reichland Melnick
It's really significantly hampering the work of U.S. attorneys offices because they are drowning in responses to habeas lawsuits, especially because ICE is often not responding properly, not releasing people when ordered. And you're getting U.S. attorneys hauled into court for contempt proceedings because they can't get their clients to do what the judges are ordering them to do.
- [01:46]
Eric Columbus
Today we're talking about immigration in the upcoming year of the Trump administration. We are recording this on February 5, 2026. We are there for 16 days into year two. It's already been rather perhaps a bit more tumultuous than Aaron and many others in the immigration sphere would like. But we're maybe step back a bit and focus not necessarily on the headlines of the day, but on what to expect in a more, in a more broader front. So Aaron, I'll just kind of throw it open to you kind of in general sense here. What, what do you think? What might look different if you wanted to kind of maybe pick something that to highlight what might look different over the second year two and from year one and what might Stay the same are there. What might we see the next year that we haven't seen already?
- [02:41]
Aaron Reichland Melnick
Well, first off, thank you for having me today. But, you know, so jumping straight into it, I think the biggest difference in year two is going to be the resources that are going to come online. As a result of the $75 billion provided to ICE in the one big beautif act back in July, a lot of this money and staffing is already starting to be seen in the field. The government has brought on at least a couple of thousand, potentially more new agents already, but thousands more are expected to join over the course of the year. And the government is going to be spending even more of its funding to create new detention centers around the country, ramping up the capacity to hold immigrants in detention and custody for days, weeks, or months at a time to a level never before seen in American history. So that is the biggest change. What is going to look the same is that we are going to see aggressive immigration enforcement. And I think the president's latest attempt at conciliatory posture, pulling several hundred law enforcement officers out of the Minneapolis area, is really just a temporary pause, and it's going to be full steam ahead on mass deportations.
- [03:56]
Eric Columbus
We said 75 billion. Is that the number?
- [03:58]
Aaron Reichland Melnick
Yeah, $75 billion, 45 billion of which go to ICE detention, to be spent through the end of fiscal year 2029. So that's through September 30, 2029, and 29.9 billion to be used for enforcement and removal operations for a whole set of purposes. But the biggest are hiring and bringing the agency up to the internal capacity to actually carry out mass deportations.
- [04:26]
Eric Columbus
Now, is there a similar pot of money for CBP?
- [04:30]
Aaron Reichland Melnick
Yeah, CBP got 75 billion also, but their 45 billion funding was for border wall. And so we are already seeing the administration putting up several miles of border wall a week, and they're expanding that even more over the course of the next year. They also got money for hiring, though somewhat less, closer to $8 billion for hiring, because they don't need as many officers. They already have 19,000. And with the funding, they're expected to go anywhere between 22 to 23,000 officers. Agents, that is. And so this was, you know, a pot of money that added about $150 billion to DHS in total. There were also several billion dollars that went to the Department of Defense for supporting immigration operations and a few little pots of money here and there. So we are looking at overall about $155 billion or so towards immigration and immigration enforcement related topics. But the big headline numbers for what we are seeing in the interior is the 75 billion for ICE.
- [05:38]
Eric Columbus
Now, is this going to. I know we've seen a lot of CBP folks working with ice and in many cases under the command of Greg Bevino, who allegedly has been sidelined, at least from Minnesota for the time being. Does the disproportionate share of funding for personnel going to ICE mean that the ICE vs CBP personnel ratio might look a little different next year in the field, or not necessarily?
- [06:12]
Aaron Reichland Melnick
No, I think it will. So when we came into the year in 2025, at the start of Trump's first term, ice had about 6,000 detention and deportation officers, DDOs whose job it was to carry out the lion's share of immigration enforcement, and about 6,500 Homeland Security investigation special agents. Special agents for HSI are a little bit more like FBI agents. They are criminal law enforcement officers. Their job is to enforce criminal laws. They're the remnant of the old U.S. customs Service inspections, police. So combined total about 12,000 to 13,000 ICE officers. But the majority of those didn't really work on immigration enforcement, whereas Border Patrol had 19,500 or so Border Patrol agents and CBP's Office of Field Operations had an additional 20 to 30,000 officers working for them. Though most CBP officers are not moving away from that mission. Those are literally the people you see at airports if you're entering the country internationally wearing blue uniforms, Border Patrol and green uniforms. The Border Patrol has diverted apparently about 10% of its workforce to interior immigration enforcement operations, sometimes higher. So with the 10,000 new staff brought on board at ICE, you're going to have potentially upwards of 16,000 detention and deportation officers. Plus, if you add the ICE HSI workforce, you're looking at more than 22,000 officers. You're looking at equivalent or more staff on board, law enforcement, full officers who will be able to do something relating to immigration.
- [07:56]
Eric Columbus
These new officers are, I can think of at least two ways in which they may change the dynamic. One is that they're officers, they are additional officers, and two is that they are new. They are kind of, by definition, people who are only now joining the ICE workforce who have no experience working for ICE under a, say, the Biden administration or much less any other presidency. If you could talk about, I guess, those two aspects. First, what does it mean to have so many new people? And second, what does it mean to have so many new people? If that makes sense.
- [08:35]
Aaron Reichland Melnick
Yeah, both of those are a very significant concern. The I think best comparison is to the massive hiring surge of the Border Patrol during the Bush administration when about 10,000 new officers were brought on board in a three to four year span. Now we're looking at 10,000 new officers being brought on board in an 18 month span or potentially even shorter than that. And the Border Patrol had enough problems. It destroyed institutional culture. You essentially had thousands of people on joining the force who had no experience ever doing this before, such that the veterans were matched or at times outnumbered in some posts by rookies. So that's never good for institutional culture, culture and knowledge. And then because in the Bush administration, again, the idea was in the post 911 world, you need to surge resources to the border as quickly as possible to defend the United States. And they ended up cutting a lot of hiring standards and they ended up hiring a bunch of people who were manifestly unqualified or outright criminals. There were a number of cartel double agents that got hired during that period and it led to a significant rise in corruption in the years after that because they had really lowered the bar for recruits. Everything that's happening now is that on steroids. You have reports that the time for training has been cut from five to six months to 42 days total. You have people that are being essentially given temporary offers or even final offers before their background checks are even being complete, reports that officers are manifestly unqualified physically, they're not passing the various physical tests necessary to take the job. And of course the administration is very obviously trying to recruit from specific places. And those tend to be more conservative MAGA spaces. They're running ads on NASCAR cars, they're targeting gun shows. All of which is to say that they are trying to build a workforce of like minded individuals rather than a workforce of law enforcement focused professionals. And that is going to have very significant impact on the agency.
- [10:49]
Eric Columbus
To what extent have have new hires already been deployed in the field in year one? Has that been happening to an appreciable degree or not yet? So far.
- [11:00]
Aaron Reichland Melnick
So new reporting from Nick Miroff at the Atlantic gives us some numbers on how many of these new officers have gone on board. And what he says is though, even though the government claims that they've already hired 12,000, the actual reality is a little bit different. As of late January, the government has about 5,000 new deportation officers who are already, quote, unquote, operational. Those are about 1200 brand new recruits who have never done any kind of law enforcement job before. About 3,000 former law enforcement officers. So Police, corrections officers, people who have gone through some form of law enforcement training in the past. Those have already gone through their online training courses. And about 800 retirees have been brought back to the agency in temporary roles. So that's about 5,000 in total. And the estimate is that in another five or six months, the remaining officers, up to their 10,000 new officers that they want, are going to be brought online. So by the end of 2026, they should have all 10,000 of their new officers fully in the field. By the middle of 2026, they may already reach that point.
- [12:12]
Eric Columbus
And what, assuming they reach their, their hiring goals, what, what do you think the practical effect of those additional hires will be? Will they, do you think that they will just have maybe three Minnesotas going at once? Do you think they'll just have a much more concentrated effort or do you think they'll just spread out? I suppose it could go in a number of different directions, yeah.
- [12:40]
Aaron Reichland Melnick
It's hard to say how they go forward following the events in Minneapolis, because I think Minneapolis showed that the Bevino style mass deportation roundups, the indiscriminate arrests of people just for speaking Spanish or the, you know, papers please, or not even just papers, please show me your face for scanning, please, kind of tactics produced very significant backlash. Those aren't going away. But it's possible that the administration's propagandistic focus on a single city at a time may be limited and we might just see a more general increase in enforcement operations nationwide. That's already been going on. Enforcement has been rising across the country, but with new officers brought on board, you can have more targeted operations carried out on any given day. And that means sort of running through the lists of people that they have on their non detained docket and deciding who to pick up on any given day and how many officers to deploy for those various operations that can also be doing things like checking the papers of anyone who happens to be wandering by while that's going on. So I think you will see an expansion of enforcement, more work site raids, potentially more large scale operations in American cities, but it remains to be seen. But in general, this will give them the ability to be more places at more times, something that has clearly been a challenge for them so far.
- [14:13]
Eric Columbus
To what extent is there a real difference between the Greg Bevino style of just kind of, perhaps to pick a word from the Bush administration called shock and awe, of just deploying massive numbers of people in one kind of concentrated community versus the Tom Homan who has talked about, about doing more kind of targeted enforcement. And the notion of Tom Homan as was one of the architects of the family separation policy in the first Trump administration, the notion that he is espousing what may be a more moderate position is somewhat, I don't want to say amusing, but a bit ironic given the history of the first term. To what extent is there a real difference there in operational approach, do you think?
- [15:04]
Aaron Reichland Melnick
Yeah, I think the biggest difference between the two men is Homan has a lot more experience working behind the scenes in a more professional capacity. Bavino had been at his highest level before he became the sort of brand new commander in chief of these national operations or commander at large of these national operations, middle management. He was the sector chief of the Louisiana sector, followed by the sector chief of the El Center Centro sector in California. Neither of those were the busiest Border Patrol sectors. And he had never run one of the larger, more politically vulnerable or even busy Border patrol stations. And he had no experience really in large scale immigration enforcement in the interior. And all of this was relatively new to the Border Patrol. They had not been deployed in places like Chicago before, but. But the tactics that they were using were very much Border Patrol tactics. And the way I like to think of this is the difference between the two agencies in some way is that Border Patrol is in the past a primarily reactive agency. They are a little bit more like beat cops. They are standing at the border or driving around in their vehicles looking for people, trying to spot people crossing the border to arrest them, seeing what cars might be suspicious and could be driven by drug smugglers. Whereas ICE has historically been an agency that doesn't do that. They're a little bit more like police detectives, except they don't really detect crime. Their main goal is to find people. So maybe a little bit more like commercial bounty hunters. They have lists of names. Usually those names are people who are in a jail or prison already. But they have over a million people who have final orders, removal. They've got millions of people on their non detained docket who they theoretically could target. But until recently, very little of that happened in American communities. The average ICE arrest was less an arrest than just a custody transfer. So they didn't have experience driving around questioning people. That wasn't what ICE officers generally did. And that was true under every administration. And to the extent that people were picked up who were not the targets, that's usually because they were in the physical building where a target was or right there, ICE wasn't doing so called roving patrols, which is a border Patrol thing, where that's what Bavina was doing. Roving patrols were just going to Home Depots or questioning Uber drivers at airports. All of that is non targeted enforcement. They're not going after a specific person. They're just sort of filtering through the general public trying to find people who might be undocumented. And so Homann comes from that world where the focus was supposedly more on specific targets. You had names of people. And yes, once you got to that location, you might do some kind of roving Patrol esque behaviors, but you are still doing this more targeted approach to start with. And Bavino didn't come from that background. The Border Patrol doesn't do targeted enforcement. The Border Patrol does sort of drive around and find people enforcement. And so that's why when Bavino got operational control of these surges in Chicago, Los Angeles, Minneapolis, that's what those looked like. Of course, the unusual thing is that Bavino was not reporting through any normal chain of command. He was reporting directly to Secretary Noem and Corey Lewandowski, the sort of shadow minister of the Department of Homeland Security and Homan, also not operating within the traditional chain of command. But he has in the past, he has had that experience. Experience. He was the head of ICE under President Obama. He spent time in the FBI. He has built his way up through that chain. So that's when I say he's more of a law enforcement professional. He is used to operating within a more standard target profile and wants the agency to look more professional as well. And I think there was a lot of pushback internally from longtime career people looking at what Bavina was doing and saying, this guy makes us look like amateurs. Of course it did, though, because he was an amateur at this kind of thing. And the tactics that he used are not tactics that people outside of border communities had really seen before. They're from an earlier era of American policing that never really had to grapple with the policing reforms of the late 20th and early 21st century where police departments professionalized and you couldn't do things like rounding up all the people who look different than you. But the Border Patrol never really had to go through that to the same extent a lot of police departments did, because they operated sort of out of sight of most of the American political mind. And as a result, I think you saw Border Patrol tactics that had been used in communities along the Rio Grande Valley and California and Arizona for generations suddenly be brought to the streets of major American cities. And the American public recoiled in horror. The problem now is pulling back on that, because at this point, everybody thinks everyone who works for DHS is ice. They totally failed to distinguish between who is Border Patrol, who is not. The agency itself now says it has integrated Border Patrol and CBP into the chain of command in ICE itself. That was new as of this week. So I think if Homan really does do what he says, which I don't necessarily trust, you will have slightly more of an idea that the people being taken into custody are at least already on ice's radar and not random people that they just happen to spot in question. But you won't be able to guarantee it. And you will continue to see the arrests of people who were not previously law enforcement priorities. Because quite frankly, there just aren't enough people who have serious criminal records for the US Government to make those the main focus.
- [21:11]
Eric Columbus
Let's look a little bit now at another part of the massive infusion of cash that you alluded to before when you mentioned the vast expansion in detention capacity for ice. And there have been stories in the past week or two about ICE looking to purchase massive warehouses. So if you could maybe explain some of that for our listeners and also maybe kind of talk about how direct is the relationship between detention capacity and ability to deport non citizens.
- [21:53]
Aaron Reichland Melnick
So we just put out a big new report, immigration Detention Expansion in Trump's Second Term, that looks at the ways in which the detention system has expanded in the last year and where it may go from here. What we found is that already in the first year in office, the system itself has expanded by over 75%. The federal government has brought more than 100 new facilities online that are in use. Most of these are state and local prisons and jails, county jails, those sort of things where local county sheriffs are renting out a few dozen beds. But there have also been a significant number of larger facilities, often run by private prison companies that have started holding hundreds, if sometimes thousands of people for ice. But all of that capacity is by and large in pre existing prisons and jails, even if those jails were not active at the time President Trump took office, there were a number of jails that were sitting empty that were owned by private prison companies that have now been brought back online. But those are still permanent infrastructure that was created to hold human beings in a detention setting. What they are running into now is the reality that they're running out of those spaces, but they still want to keep expanding the system. And so they're looking at ways to do that. Initially, the administration focused on tent camps and in August, they opened up what is currently the largest ICE detention center in the country, what's known as Camp East Montana in El Paso, Texas, on Fort Bliss, a military base. This camp started in August holding a few hundred people, and they were literally building the tents as they were already sending people there. The facility is reportedly in horrific conditions. People there sleep with the lights on 24 hours a day. There is very inadequate care. You're literally sleeping in a giant tent, so you constantly have a very loud noise of the H Vac and the air flow going through. People are not held in individual cells. They're sort of large detained cells. They don't look like a traditional prison, and the food is horrible. The guards are abusive, and the medical care is inadequate. Three people have already died at the facility, one due to reported inadequate medical care, one who was supposedly killed, the victim of homicide, according to the El Paso medical examiner. And the third reportedly committed suicide. But notably, it has been reported in the last few days that that third person, the autopsy is not being done by the El Paso medical examiner. They've sent it to the on base forensic examiner. So we don't really know for sure whether they're telling the truth that it was a suicide there. So three people have already died at that facility, even though it's been open for only about five months. But tent camps on military bases are logistically a little bit more complicated. You have to build brand new tents. You've got to staff all of them that way. And it potentially interferes with the Department of Defense, and the military doesn't necessarily want that. So the Trump administration has a new idea, and that is to purchase commercial warehouses around the country and create a new deportation system, essentially building a federal system rather than a network of contractors that are running everything. Instead, these will be facilities owned by the federal government, but operated by subcontractors, not actually operated by federal staffing. And they have already purchased three or four warehouses. The exact number is not clear. They've spent seemingly already half a billion dollars in acquiring these warehouses. These are huge facilities that they intend to convert, after several billion dollars more investment into the facilities, into mass detention camps with several megadeeportation hubs that will potentially hold 8,500 people in a single warehouse and smaller spokes that will hold 1500 people, or 500 to 1500 people in smaller converted warehouses. Todd Lyons, the acting director of ice, said at a conference last year that the ultimate goal is to create Amazon prime, but for people. And that gives you some sense of what they're looking at in the logistics, maybe turning back from years of using these more standard prisons and saying, we want to build a bespoke deport system using our own network of warehouses we've converted into detention centers. And then your second question was sort of, how does that actually impact the people that are in them? And the reality is that if you are in detention, your chance of winning your case plummets because you're away from your family, you're away from your resources, you're away from your lawyer. And also because the conditions of confinement are terrible and a lot of people are willing to just give up. And the federal government is actively pressuring people who are in detention to get them to give up. They're offering higher cash incentives to detain people to give up their cases between 3 and $5,000 as compared to the CBP home process for people who aren't already arrested, where they're currently offering $2,600. And they're also saying to people, if you want to fight your case, you're going to be locked up here for months. And if you sign this paper, you go home tomorrow. And when that doesn't work and people don't sign, there's also been reports that sometimes they just coerce people into signing them anyway. They just put a piece of paper in front of them and say, you have to sign this. And the person says, well, I don't know what this is. And they say, you have no option. You must sign this paper. And sometimes people are intimidated and they do, only to find out that they have apparently signed a so called voluntary return, which, you know, erases their right to a full day in court.
- [27:48]
Eric Columbus
Wow, that's kind of remarkable stuff.
- [27:53]
Aaron Reichland Melnick
Yeah, it's not a new system. And this is like these problems. I think it's really important to note there's two ways to look at this. One is that this system is not new. Detention has been coercive for generations. The system was created both as a deterrent and as a way to ensure that people actually were deported. If you look back at the 1980s, the first modern immigration detention center opened in 1981 in Miami, the Crome Detention Center. It's still there today. And then Attorney General William French Smith said detention is necessary to keep people like the Haitians from setting sail in the first place. So that was one purpose of detention was deterrence. The other was for holding people that they thought were flight risks, risks to ensure deportation. Because if you order somebody deported and they're outside of detention, they could not show up. For their deportation flights. And some people do. Not many people do. I want to emphasise this. The idea that no one shows up for deportation is simply false. But therefore detention was pitched as the way to ensure that once you actually get that deportation order, it can be carried out. So right now we are seeing all of those issues and the ways that the system was built over the last few generations, really culminating in this sort of explosion of detention today, where with the resources the Trump administration has on hand through the one big beautiful Bill act, they may end up creating a new detention system that rivals the entire size of the federal prison system, and they may build that out of warehouses and tent camps in only a few years.
- [29:31]
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- [34:26]
Eric Columbus
So one thing that, that I think is new is, and I'd like you to, to explain that much better than I could, is the Trump administration has instituted a mandatory detention policy. Right. Which is being challenged in the, in the courts and apparently like over maybe 350 cases, and the administration is like maybe losing around 90% of them. If you could talk about how that, what is different with that policy, how they've been using it and what we should expect, the outcome of the possible outcomes of the litigation as it works its way up the courts.
- [35:04]
Aaron Reichland Melnick
Yeah, so that's another one where I actually have to go back in time, because when we look at detention, the default rule for a century, once the idea of detaining immigrants ever became a thing, was that people had a right to seek release on bond. In the early 20th century, detention was almost entirely used on people arriving at the border who were being screened to see whether they would be allowed in. But habeas review was available later in the 20th century, once the more modern system was created, this switched over to bond decisions being made by immigration officials themselves. But the default rule was always bond is available. That changed in 1996 when at the height of tough on crime, and tough on in particular criminal aliens, Congress created two big categories, or what are known as mandatory detention. And mandatory detention is detention prior to a removal order being issued that is mandated. The government is not allowed to release that person on bond. The person cannot go to a judge and say, judge, I'm not a flight risk, I'm not a danger to the community. Why am I being held in this jail? And there were initial challenges to the constitutionality of that, but the Supreme Court, in a case called Damore v. Kim, blessed the idea. So right now there are two big categories of mandatory detention. First is for people with criminal records. If you have a specific criminal record, you've been convicted of certain crimes, you are ineligible for bonds in somewhat of a similar way to some places, bar bail for people arrested for particularly serious crimes. And then the other is any person apprehended crossing the border or who arrives at a port of entry. So called arriving aliens is the phrase in the law. And for generations, in 1996, they create these two mandatory detention for arriving aliens and mandatory detention for people with particular criminal records. And for the 30 years after that, everyone agreed that your garden variety undocumented immigrant who was apprehended in the interior was not under either of those categories. They were subject to the default rule, which had been in place for over a century, which is that they were eligible to seek their release. Fast forward to last summer. The Trump administration says, we've gone and looked at that 1996 law, and our new interpretation is that every undocumented immigrant who initially came to the United country by crossing the border unlawfully is still under the law, what's known as an applicant for admission. That is a correct statement. By law, they are deemed applicants for admission. And so what we're saying then is that they are still arriving in the United States even if they have been here for 25 years, even if they own a house, even if they have jobs and family here. We're going to say that legally they are still arriving in the United States and therefore they are subject to mandatory detention under the provision that for the last 30 years, everyone has agreed, applied only to people actually arriving at the border, apprehended within hours or a day or two of coming or arriving at a port of entry. And that decision, their new legal interpretation, was very quickly blessed a few weeks later by the Board of Immigration Appeals, the sort of appellate body which sits above immigration courts and sets immigration precedent for the country. That body had already been purged of all Biden appointees months earlier. And so at that point had zero people who had been appointed by President Biden on the board and only one or two remnant Obama admin appointees. So it was over 75% Trump appointees to the board at that point. And the result of this is that any undocumented immigrant who is arrested inside the country right now, who initially entered the country not on a visa, so across the border is deemed mandatory detention, ineligible for release on bond. This has been met with very significant opposition in federal courts, with judges saying, look, the phrase arriving here has to be. So, yes, an applicant for admission, an undocumented immigrant who came across the border is technically, technically an applicant for admission, but they're not arriving in the country. They have already arrived. They are here. And it makes no sense to do this. And now we've had 300 plus judges say that this policy is wrong, it's unlawful. And it's led to an explosion of habeas corpus lawsuits, with the latest reports suggest around 150 per day being filed now nationwide.
- [39:57]
Eric Columbus
That issue will eventually be resolved by the Supreme Court, I assume, and perhaps sooner than later. Is that right, you think?
- [40:05]
Aaron Reichland Melnick
It's hard to say. The 7th Circuit is the only circuit to have weighed in. It actually weighed in on a somewhat unrelated case to do with Operation Midway Blitz, where the government sort of cited to that as a backstop about one of their arguments. And the 7th Circuit took the time to say, we think you're totally wrong about that. The fifth Circuit, I believe the case is already pending there. So we could have a circuit split sooner rather than later. And if this gets appealed to the Supreme Court, I don't know how quickly it could make it there. It's probably a little bit too late for it to be heard this term. So it's possible that we might not actually have the case heard by the Supreme Court until significantly later. But this is something that has to be decided sooner. If this makes it up to the Supreme Court, the pressure will be on them to do something because it's crippling district courts nationwide and it's really significantly hampering the work of U.S. attorneys offices because they are drowning in responses to habeas lawsuits, especially because ICE is often not responding properly, not releasing people when ordered. And you're getting U.S. attorneys hauled into court for contempt proceedings because they can't get their clients to do what the judges are ordering them to do. So this entire legal change, changing 30 year old interpretation of the law has kicked off a crisis in the Judiciary and at U.S. attorney's Office nationwide. And the Trump administration does not seem to care one wit, they're perfectly happy with that state of affairs.
- [41:34]
Eric Columbus
So, and correct me obviously if I'm wrong, but am I right that the crisis is not over whether the policy is lawful, but rather that assuming that the policy is lawful, it leads to these onslaught of habeas applications. Is that a fair statement or no?
- [41:53]
Aaron Reichland Melnick
Well, if the policy was lawful, then the habeas lawsuits would dry up because, you know, if the policy is lawful, then the detention is lawful. And the habeas litigation would not result in any change, though people are challenging various alternate aspects of it. This is the main aspect of the habeas litigation. The issue right now is that because it's unlawful, you have essentially hundreds of judges saying it's unlawful. And so anytime an immigrant is arrested, arrested and denied bond under this legal interpretation, they have no other remedy to seek release but to go to a federal district court judge. If detention were to be lawful, if the Supreme Court ultimately says the government's interpretation is correct, and due to some weird quirks of immigration law, a dad who's been here for 25 years raising a family is still arriving in the United States, then in that case habeas is going to be cut off and there wouldn't really be much of a reason to do it. So a decision one way or another would end the flood of habeas lawsuits. If the government loses, then they're going to have to go back to offering people a traditional bond hearing or make them eligible for initial release, in which case bond appeals go to the Board of Immigration Appeals and people's options actually are to get out will be significantly less. That's the ironic thing here. And if the government wins, then of course mandatory detention is lawful in this circumstance and only Congress could change it.
- [43:27]
Eric Columbus
Sorry, you're saying that the government, that if they do get bond hearings, it will be less likely to get out of detention?
- [43:35]
Aaron Reichland Melnick
Yes and no. It's hard to say the exact impact, but the biggest thing to know right now is that the pressure is on immigration judges to deny bond, and the pressure's on the Board of Immigration Appeals to uphold those bond denials. And once you get to that point, it becomes very difficult to get release. There's not a full, immediate right to appeal a bond denial to a circuit court. You have to sort of incorporate it within the more broad appeal. So people will languish in detention centres for a long time, except they'll do so under procedurally adequate measures versus what's allowing habeas lawsuits today is that that there are no other options for release, which gives courts jurisdiction to hear these cases. If there is another option for release, such as a bond hearing, then the district courts don't have jurisdiction.
- [44:23]
Eric Columbus
Got it. So this is one issue that the Supreme Court may resolve later this year. I think another issue that the Supreme Court is likelier to resolve more expeditiously is the fate, the final fate of President Trump's executive order purporting to end birth rights, citizenship. Are there other issues that are in these categories of things that we expect the Supreme Court to weigh in on? Hot button immigration challenges over the next year or so that will one way or the other affect the course of immigration law in the Trump administration.
- [45:03]
Aaron Reichland Melnick
So there's a few other topics. I think one is going to be temporary protected status. The Trump administration has sought to terminate every single temporary protected status designation that's come in front of it. Lower district courts have almost universally ruled those unlawful. The Supreme Court stepped in and stayed two of those decisions around Venezuelan tps. But in decisions that did not offer as many of these shadow dockets, absolutely no explanation as to why. And their reasoning could go a couple of different ways. It could have been a purely jurisdictional denial. It could have been a denial on the merits. We just don't know. There is Haitian tps now, that's going to potentially make its way back up to the Supreme Court on the shadow docket. And if they once again put that decision on hold, it will give you some sense about how they'll ultimately rule. But we still have no exact reason for why, because these cases, you know, struck down the determination on multiple different grounds. The big obstacle for these cases is that there is a law in the Temporary Protected Status statute that says no court has jurisdiction to review any determination to grant, extend, or deny or terminate tps. And courts are getting around that by saying, currently we're not reviewing the determination. We're finding that you didn't go through the legally required process because before you made the determination, or that in making your determination, your decision making was so thoroughly afflicted with animus against this population that it's constitutionally inadequate, which is sort of something that I think there is a good argument that the government has made that that's maybe a little bit too clever by half. That said, again, the ninth Circuit has found that they have jurisdiction to hear these cases. Multiple other federal judges have heard. So that's an issue that's going to make it to the Supreme Court eventually, probably next term. And then there's a few other things floating around out there. I think, for example, one big one is going to be the president's travel ban will make it back to the Supreme Court. Last there for Trump v. Hawaii, the travel ban. Now, Trump has expanded these bans even further and stretched that authority to an even greater degree, including claiming that the power to restrict entry allows him to impose $100,000 fee on people seeking H1B visas. If that's correct, then the power is even more broad than the Supreme Court suggested in Trump v. Hawaii. And there's a bunch of follow ups from that case, because in Trump v. Hawaii, the Supreme Court said, we don't think the travel ban authority lets the president override other provisions, provisions of immigration law. That's something that is going to be front and center in a number of challenges to the president's travel bans. And then, of course, finally, the question of authority for arrests on ICE and cbp. Can they use racial profiling? It's not exactly clear what vehicle is going to eventually make it to the Supreme Court, but it will likely make it there. And we'll see whether they follow Justice Kavanaugh in saying, actually, yes, race may be effective factor that can be used in generating reasonable suspicion, or whether the coining of Kavanaugh stops maybe will give them pause and make them think, gee, maybe we didn't anticipate the level of backlash that would get to endorsing this kind of practice that Maybe was acceptable 50 years ago, but in 2026 is not.
- [48:43]
Eric Columbus
There's been talk, obviously, as we look at the calendar, or the. Perhaps the most significant event looming, or one of them is the midterm elections on November 3rd. And there's been talk from, I suppose you could say, both sides of fears and hopes, I suppose that the administration will somehow use ICE in some way that will affect the conduct of those elections. And, and I think most recently, Steve Bannon said. I think on his show, he said, we're going to have ICE round the polls come November. Steve Bannon likes to talk big. Not necessarily the most reliable narrator, but he's also someone who the administration at least hears out every time he says something, even if they don't necessarily do what he suggests. Is this realistically something that. That people should be concerned about?
- [49:41]
Aaron Reichland Melnick
You know, I'm not an expert on elections, but all I know about Steve Bannon is that he often talks a big game. You know, as you said, he is somebody whose word on these matters is influential, but certainly not to be trusted. I don't see any legitimate reason that ICE could be deployed to polling places. I don't put anything past this administration to some extent, but it's not on my list of particular high levels of concern. And I do think something like that would ultimately backfire if you have ICE agents deployed to polling stations at 7am when the polls open on the East Coast, Californians and people in the rest of the country are going to wake up to a massive controversy, and that's going to potentially impact their decisions about whether to go to the polls. And I think. I think, as we saw in Minneapolis, if they try to do something like that, my suspicion is that it would backfire significantly more than it would have any impact on getting people not to go to the polls. I think one thing Americans have shown in the last few months is that if you tell people not to do something, it's going to make them more likely to do it.
- [50:56]
Eric Columbus
So, Aaron, we've covered a lot of ground here, and this has been incredibly illuminating for me, I should say I have. I worked in the DHS Office of General Counsel as a political appointee in the last three or so years of the Obama administration. I know enough about immigration just to be a little bit dangerous and, you know, to often get things wrong. And it's great to have you for my sake personally, and obviously much more so for our listeners, I'm going to close with one just kind of broad, open end question. Are there things that I haven't asked about that you are either hopeful about or fearful about, things that folks should be looking out for in the second year of the Trump administration? On the immigration front?
- [51:49]
Aaron Reichland Melnick
Yeah, I'll start with fearful and then move to hopeful to end on a lighter note. The thing that I think people are not paying enough attention to right now is the, the effects of what's going on in the legal immigration system. The Trump administration not only has imposed immigrant visa bans on 39 countries, plus the Palestinian Authority, it's done so in an even broader way than his first term. And that means that right now, if you are a US Citizen and you have a spouse or a child or a parent in one of those 39 countries, which includes some very big populous countries like Nigeria and Cuba, Venezuela, Haiti, you aren't allowed to bring over your immediate relatives like you were even under Trump's initial travel ban earlier last year. So you cannot marry a Nigerian and bring your spouse over. That's currently impossible to do, which is pretty unprecedented in, in the modern immigration system. It really brings us back to the Asiatic barred zone and the restrictions of the national origin quotas in the 1920s-50s. And I think people haven't really processed that way, in which American freedom has been restricted, but also how the legal immigration system is being dismantled through either travel bans or through more red tape, fees, costs, and everything else that's going to make the United States a less desirable destination for people around the world. And all of that is going to get worse. They're really clearly trying to reshape American immigration without ever going through Congress and any kind of Democratic accountability, just using the hidden weapons of immigration law, many of which have been sitting around for generations now, that they're dusting off and aiming at new targets, sometimes weapons that have never, ever been used in these ways, or that even the Congress who created them probably didn't think they were intending to create. And then that is having an impact on immigrants who are here legally already, whose renewals are being impacted. You have H1B visa holders from India right now are being essentially locked out of the country at their renewals because the U.S. consulate isn't processing certain renewals for months, meaning that people might have to leave the United States for six or eight months before they're able to come back, which is going to impact their ability to keep their jobs and stay around with their families. Things like that are going to push people out of the legal immigration system either to leave the country or at times lose status and become undocumented and then potentially subject to enforcement. And that, I think, as this administration expands and starts putting new regulations and policies into practice, is going to continue to have an impact in the next year, but will go less under the radar because millions of people will still continue to get their immigration benefits processed. People will still be naturalizing, people will still be getting their green cards. It's just that very slowly they're going to shift who's getting those and how and how difficult the process was, making it harder so that fewer people aren't even going to apply. But with the legal immigration system, the backlogs are so long that even if you kicked a million people out of line today, there would still be millions of people waiting. So their ability to actually reduce the numbers of immigrants right now is pretty limited, but they can change the composition. And then what I will say, my positive that I'm going to leave on is I think the American public isn't happy with any of this. President Trump ran on a campaign message of mass deportations, but I think what most people heard was, we're going to kick out the bad people. And most people thought there were more bad people than there actually were. And now they're waking up, up and seeing that actually that's not what they're doing. When they said mass deportations, they meant that. And when they are calling Somalis garbage and saying, we want them all out of our country, no one from a third world country can come here. That's not the vision of America that most people have. And that's why his support on immigration keeps dropping. And if the midterm elections see a shift in power, I think you're going to see a lot of these efforts brought out into light. There's going to be congressional hearings, there's going to be real efforts at legislation. And this isn't much of a bright light at the end of the tunnel. But there may be a point where President Trump, trying to preserve his legacy, says, I'll make a deal with Democrats on immigration and we could get some broad reform. I don't think that's highly likely, but it's a real possibility. And I think we have to be setting up and thinking about what does that better world look like? Like, what does a deal look like? Because that time may come quicker than anybody expects.
- [56:42]
Eric Columbus
Aaron, thank you. This has been a great conversation. I look forward hopefully to have more such conversations with you. Certainly, as we get closer to the end of the year, we may be able to revisit some of these discussions and also think about what, in a moment, a better world or a world in which there is a more of a division of power? What immigration enforcement and a broader immigration system could look like. Thank you.
- [57:12]
Aaron Reichland Melnick
Happy to come back anytime.
- [57:17]
Eric Columbus
The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad free, you can become a Lawfare mercurial supporter@lawfaremedia.org support supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help. And be sure to check out our other shows, including Rational Security, Allies, the Aftermath and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. You can also find all of our written work@lawfairmedia.org the podcast is edited by Jen Patya with audio engineering by Kara Shillin of Goat Rodeo. Our theme song is from Alibi Music. As always, thanks for listening.
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