Immigration lawyers prepare to battle Trump in court again

It was just days into his first term when President Donald Trump issued an order banning the entry of people from several predominantly Muslim countries. An SOS went out to immigration lawyers across New York to head to Kennedy Airport, where arriving passengers were already being detained.

By noon, hundreds of lawyers were interviewing relatives and friends of travelers who were being held, challenging their detention and drafting petitions for their release.

The mobilisation that morning in 2017 spawned a network of hundreds of lawyers who are now ready to fight the crackdown on immigrants that Trump promised to carry out in a second term in office.

After his decisive victory over Vice President Kamala Harris, Trump is expected to name key Cabinet choices in the coming days and weeks, including his nominee to lead the Department of Homeland Security. And in the coming four years, a harsher crackdown on migrants is expected, something immigration lawyers have prepared for for months.

The Supreme Court upheld a version of the ban on travelers from several predominantly Muslim countries, which the Biden administration eliminated in 2021. But earlier this fall, Trump said he would "bring back the travel ban."

During his campaign, Trump vowed to undertake the largest deportation effort in the nation's history, though he skirted questions about whether the sweeps would target immigrants who had long lived in the country without legal permission, people who had more recently crossed at the southern border or both. About 11 million people without legal permission resided in the United States as of 2022, according to the Pew Research Center, with nearly two-thirds having been in the country for at least a decade.

While deporting millions of people would be all but impossible with current enforcement resources, Trump has said he would consider stationing U.S. troops at the border with Mexico and working with governors to deploy the National Guard into the interior of the country.

In his victory speech early Wednesday, Trump said that voters had handed him "an unprecedented and powerful mandate" to pursue his agenda.

Indeed, the immigrant advocacy community will face a very different political landscape when Trump returns to the White House in January. Voter sentiment has shifted markedly, with far more Americans expressing concerns about immigration and a willingness to support tougher policies.

Unlike in 2016, when he won the Electoral College but lost the popular vote, Trump won both in this election, the first Republican to prevail in the national vote in two decades, after campaigning on harsh immigration policies. And he will enter office with a Supreme Court that counts three of his first-term nominees among the nine justices.

"We're going to fix our borders, we're going to fix everything about our country and we've made history for a reason tonight, and the reason is going to be just that," he said Wednesday.

Lawyers for immigrants said they have been preparing for months for the possibility of large-scale workplace raids, roundups in immigrant enclaves, new restrictions on asylum, the expansion of detention and the termination of programs temporarily shielding some people from deportation.

"The Trump team might think they are ready," said Camille Mackler, CEO of Immigrant ARC, who sent an SOS email that brought hundreds of lawyers to Kennedy Airport that day in 2017. "But so are we."

Becca Heller, founder of the International Refugee Assistance Project, which sued the government over the Muslim ban, said that winning the popular vote was not a license to ignore the law. "He can't act outside the bounds of the Constitution and the Bill of Rights," she said.

Having battled one Trump administration, she and her allies are ready for a second, Heller said. "We literally have a blueprint of what they are planning to do, and so we had months and months to figure out how to protect people," she said.

"Trump has told us what to expect -- hate and persecution and concentration camps," she said, referring to his team's plans to use military funds to build "vast holding facilities." "None of us have any illusions about what we are up against this time."

The new president's immigration agenda will have battle-tested allies in some of the country's state capitals. A coalition of Republican attorneys general, led by Ken Paxton of Texas, have systematically challenged the Biden administration on key immigration policies.

The results have been mixed, with some challenges temporarily blocking President Joe Biden's efforts but others being turned back by the courts. The challenges have kept the fight over immigration in the news and on voters' minds, and given the Biden administration even more to worry about.

While the states that have been mounting those legal fights are not likely to be challenging the incoming Trump administration, they could play a crucial role in carrying out some of the expected federal efforts on immigration, said Lenni Benson, a professor of immigration law at New York Law School.

After extensive civil rights litigation, Arizona's attorney general opined in 2016 that sheriffs could enforce "a show-me-your-papers law," as long as they asked for documents from every person arrested.

Trump, who made immigration his calling card again this campaign, is expected to issue a spate of executive orders on his first day in office, such as to seal the border and arrest immigrants without legal permission, including ones in the interior of the country.

Trump's immigration advisers have said that, while criminals would be prioritized in making arrests, no one unlawfully in the country would be spared, a shift from Biden and other presidents, who focused resources on targeting serious criminals.

Lawsuits are expected to pile up.

"We have spent the last nine months planning for this, and are prepared to go to court as often as necessary, just like the first time," said Lee Gelernt, a lawyer for the American Civil Liberties Union who argued many immigration cases, including one to halt the policy of separating migrant families at the border.

The ACLU filed many legal challenges against Trump policies during his first administration. It defeated his attempt to include a citizenship question in the 2020 census at the Supreme Court and won a settlement for the families split up at the border. In a full-page ad published in The New York Times' print paper on Friday, the organization wrote an open letter to Trump, saying it planned to defend people's rights "in the courts, at state legislatures and in the streets."

Tom Homan, a senior immigration official in the last Trump administration who is expected to return to government, said on CBS's "60 Minutes" last month that large-scale worksite raids would resume. Such operations, which can lead to the arrest of hundreds of unauthorized workers, are costly and complex, and have not been conducted under Biden.

Bruna Bouhid-Sollod, senior political director for United We Dream Action, a national group led by young immigrant activists, said the organization has been crafting plans for a second Trump presidency.

Those strategies include "know-your-rights" training, letter writing campaigns to encourage elected officials, and public art and vigils to show support for immigrants.

One of the biggest concerns is the fate of Deferred Action for Childhood Arrivals, the program known as DACA, which has shielded from deportation and granted work authorization to hundreds of thousands of immigrants brought to the United States illegally as children.

Bouhid-Sollod said she was among many DACA recipients who joined United We Dream after Trump's election in 2016, out of fear that Trump would kill the program. He tried to, but the Supreme Court kept the program in place in a 5-4 ruling, saying the Trump administration hadn't followed proper procedures for ending it.

Since then, Texas and several other states have sued to end DACA, and a federal court ruling in their favor is under review by an appeals court that has several Trump-nominated judges and has embraced some of the most aggressive conservative arguments in American law.

And of course, the incoming Trump administration itself could try again to end DACA.

"We are cleareyed about the challenges ahead," Bouhid-Sollod said. "That is the big difference between 2016 and 2024."

Benjamin Johnson, the executive director of the American Immigration Lawyers Association, said the organization has long been analyzing Trump's immigration promises, preparing litigation to challenge policies they believe would violate their clients' rights to have their cases heard and fairly processed under the law.

In his campaign, Trump spoke of using the Alien Enemies Act of 1798 to carry out mass deportations, a law under which people of Japanese descent were held in internment camps during World War II.

Trump also has said the deportations would be modeled after those under President Dwight D. Eisenhower, whose administration used sweeps, raids and blunt forms of racial profiling in the 1950s to round up and expel mostly Mexican and Mexican American laborers.

"He has threatened to use powers -- some that haven't been used in a century, since World War II -- to arrest, detain and imprison people without any judicial review," Johnson said, referring to Trump. "We are going to have to find ways to meet the moment."