Trump can reduce hostility for immigration enforcement — without weakening it

Border czar Tom Homan has had record-breaking success with his border security measures. Apprehensions at the Southwest border have declined to levels not seen in more than three decades. This is because, as the Department of Homeland Security claims, the border is more secure now than at any point in history .

The Trump administration has had success with interior enforcement, too, but its enforcement measures there have resulted in a lot of public hostility and a tsunami of lawsuits. But it doesn’t have to be this way. President Trump can implement his enforcement policies just as effectively, but with less hostility and fewer lawsuits, if he just adopts a few smart changes.

First, his administration should change its litigation strategy. The ACLU brought 434 legal actions against Trump during his first term in office, and 230 legal actions against him during just the first year of his second term. The best way to stop or weaken this campaign to block Trump’s immigration policies is to learn as much as possible about what the activist organization is doing and why.

A January ACLU report titled “ Defeat, Delay, Dilute: ACLU Versus President Trump ” explains the strategy. The administration also should study the ACLU’s successful lawsuits to learn how to make new enforcement initiatives less vulnerable to avoidable litigation.

A second tip pertains to the use of masks and badges. Homan says that ICE officers in the field need masks to protect them and their families from what has been called doxxing, or the malicious exposure of their personal information. It is a crime to make personal information about ICE officers available to the public, to to threaten or incite violence against officers and their families, who are just doing their jobs.

The strongest objection to face masks is that they reduce accountability. This is a legitimate concern, but ICE officers can be identified even if they are wearing masks. The agency can assign unique identification numbers to each officer and put those numbers and the names of the offices they work for on badges. Then simply require them to wear the badges when they are conducting field operations. This would substantially reduce the risk of doxxing, while the identities of the numbered officers could be made available to the ICE Office of Professional Responsibility , the Homeland Security inspector general , and congressional oversight committees as needed.

Third, the Executive Office for Immigration Review is using military lawyers as temporary immigration judges without requiring them to have direct immigration experience. This is intended to address a growing backlog of cases at the courts. But using judges inexperienced in immigration law unnecessarily increases the risk of reversible error and due process challenges. It would be better to use these lawyers primarily to preside over master calendar hearings until they have more experience.

As the office puts it, “Master calendar hearings are held for pleadings, scheduling, and other similar matters. It should be possible to train these newcomers for these responsibilities and to handle relatively straightforward in-absentia proceedings for aliens who fail to appear at the master calendar hearings despite receiving proper notification. This way, more experienced immigration judges can handle more complex matters.

ICE should also reexamine its priorities for detention. As of July 11, ICE was detaining 65,765 immigrants, but many of these might not need to be detained. The agency should give priority to detaining aliens who are subject to mandatory detention , which includes the 90-day “ removal period ” for aliens with a final removal order. When detention is discretionary, ICE generally should release aliens unless an individual assessment indicates that detention is necessary due to a public safety or flight risk. In questionable cases, ICE’s Alternatives to Detention program can be used to minimize the risk that aliens will abscond.

In May, the Department of Homeland Security shut down the Office of the Immigration Detention Ombudsman that provided independent oversight of immigration detention facilities because Congress had not provided funding for that office. Its responsibilities included handling complaints about conditions in detention facilities.

The department should ask Congress to restore funding for this office. In addition to helping immigrants subject to detention, it provides an independent mechanism for identifying and correcting problems before they become scandals or lawsuits.

According to a recent Economist-YouGov poll , 48 percent of Americans support abolishing ICE, and 40 percent oppose abolishing it. Moreover, 42 percent do not have any confidence in ICE, 11 percent have only a little, and only 22 percent have a great deal of confidence in the agency. Fifty-eight percent think ICE has used too much force; only 30 percent think its use of force has been necessary and justified.

ICE’s Office of Public Affairs is supposed to prevent such negative reactions to enforcement operations. It should redouble its efforts to bolster public confidence.

Better-trained judges, unique numbers for identifying masked officers without exposing them, the elimination of unnecessary detentions, the restoration of an independent detention-complaint office and greater transparency would all make enforcement measures more defensible legally and politically, without reducing their effectiveness.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.