This Plan Makes Sense

Promise & Peril: Donald Trump's Immigration Reform May Not Be So Crazy After All

Jack Encarnacao, The Boston Herald

Donald Trump’s audacious immigration plans could force reticent countries to accept criminal deportees, better fund U.S. immigration agencies and put a chill on flagrant border crossings — but the billionaire’s proposals also strain the limits of presidential power.

The presumptive GOP nominee has proposed canceling visas for countries like Haiti, Vietnam and China that don’t accept deportees, boosting certain immigration and visa fees and amending banking regulations to block billions in remittances to Mexico.

Kenneth Palinkas, former president of the National Citizenship and Immigration Services Council, the union that represents naturalization officers, said Trump’s stance would counter a “liberal mindset” in the past two administrations that led to routine waivers of immigration fees, which fund the over-burdened agencies responsible for deciding who’s allowed into the country.

“Mr. Trump has a lot of good ideas — if you want to come to this country, you should pay for whatever benefits you’re seeking,” Palinkas said.

“If you want to apply for citizenship, they allow for a fee waiver based on the fact you don’t make enough money, so therefore we’ll waive the cost, which could be around $1,000. I understand the mentality being, well, everybody should have the right to citizenship. But you know what? If you can’t afford that, well then how are you going to meet the poverty guidelines for citizenship?” he said. “Are we just going to become a welfare nation?”

Jessica Vaughan, the director of policy studies at the conservative Center for Immigration Studies, predicts Trump’s election also would put an immediate chill on illegal border crossings.

“Right now they’re coming mainly because they know under the Obama administration’s policies they’ll be allowed to stay,” Vaughan said. “The main effect would be in deterring new illegal arrivals because people would say, ‘Oh, wow, I guess he (Trump) is going to crack down and it might not be a good idea to try right now.’”

In addition to social costs, Trump’s stance might also spare the U.S. the tab of monitoring criminal aliens whose home countries won’t accept them.

In Congressional testimony, Immigration and Customs Enforcement (ICE) officials have fingered Haiti, China, Vietnam, India and Cuba as habitual decliners. ICE released more than 30,000 criminal aliens from custody in both 2013 and 2014.

“Pretty much the only way you’re not going to be able to deport somebody is because that country won’t agree to take them,” said Matthew Cameron, an East Boston immigration attorney and lecturer at Northeastern University, who opposes many of Trump’s immigration proposals.

“I think it is a very effective sanction. I think as a country we have a right to set that sanction if we want to,” Cameron said.

But Trump’s immigration plans would also butt up against the limits of presidential powers, much as President Obama has with his own executive orders that would have given work permits and legal status to millions of illegal aliens.

Trump’s idea to block undocumented people in the U.S. from wiring money to Mexico and impound those wages — $24.8 billion in 2015, according to Mexico’s central bank — is legally specious, said David Wolfe Leopold, former president of the American Immigration Lawyers Association.

“Anybody who works in this country, whether they have work authorization or not, is lawfully entitled to their paycheck, period,” Leopold said. “There’s all kinds of legal challenges that you could imagine, not the least of which would be a pretty credible equal protection claim.”

Cameron, the East Boston immigration lawyer, also questions how high Trump could raise fees, particularly if he singles out visas popular with Mexicans to help pay for a border wall.

“There has to be an upper limit here, where interest groups are going to say, ‘This is extortionary,’ especially if it’s being used to pay for something as offensive as a wall,” Cameron said.

While the executive branch has the power to make regulations, the Administrative Procedures Act sets out standards to guard against arbitrary and capricious ones. The law — cited by a federal judge last year in striking down Obama’s attempt to legalize undocumented immigrants — requires a public comment period where affected groups make cases against an executive order.

“He would find, like any president finds, that there are lots and lots of constituencies that he had not thought about that may be harmed in ways that he had never expected, and the rules that he envisions, even to the extent that they’re conceptually coherent, just can’t be implemented,” said Stephen Heifetz, an international business and security lawyer who served in the Department of Justice, Homeland Security and the CIA.

All presidents underestimate checks on their own power, but Trump “glosses over not just the political opposition, but the very real statutory and constitutional checks on a president’s ability to get things done,” said Matthew Dickinson, an expert on presidential powers and author of “Bitter Harvest: FDR, Presidential Power, and the Growth of the Presidential Branch.”

Ben Ferro (Editor, InsideINS.com)

benferro@insideins.com