By: Richard Hanus, Esq.
February 23, 2026
To deport or not to deport. That is the question. For the decades I have been practicing immigration law, U.S. immigration authorities, whether it be the Immigration and Naturalization Service (INS) or its successor enforcement agency – Immigration and Customs Enforcement (ICE), have been continuously active in enforcing our immigration laws, but it has always been a question of degree. Importantly, prior to the Trump administration taking office, you’d rarely see an otherwise law abiding (noncriminal) undocumented individual arrested and detained without a chance at bond and being released while defending removal proceedings. The only exception would be for non-criminals who have ignored a prior deportation order. These days, everything is changed and it’s not just the “worst of the worst” or “bad hombres” that are in the cross hairs of immigration enforcement and indefinite detention. Even noncriminal foreign nationals who have been legally authorized to enter the U.S. or are undergoing a legal process toward asylum or permanent residence are regularly being arrested and detained. But is this what American wants or needs?
Let’s start with the law. Our nation has borders and the law says that individuals without legal authorization or documentation are prohibited from entering, working and living in the U.S. Those violating our immigration laws are subject to deportation proceedings. This is axiomatic, undeniable and the will of our legislature and democracy. No undocumented foreign national in the U.S. can otherwise claim a legal right to live here – with an exception for those with a legally founded claim for asylum, fleeing the threat of harm, death or imprisonment in their home country due to persecution on account of a designated protected ground. Also, within the context of deportation proceedings, aside from asylum requests, noncitizens facing deportation may be eligible for a form of discretionary relief and eventually residence in the U.S. in various circumstances. “Cancellation of Removal” is among the most popular defenses to deportation, and is available for those who have lived in the U.S. more than a decade, are of good moral character and can demonstrate that their forced departure would cause their U.S. citizen (or permanent resident) parent, spouse or child “extreme and exceptional hardship”.
For decades, under both Republican and Democrat presidents, our nation has chosen to essentially look the other way when it comes to millions of otherwise law abiding undocumented immigrants living here. More accurately, the U.S. has mostly had a love affair with this segment of our population, especially when convenient and it means we benefit from their contributions through jobs Americans are generally repelled by.
But from a strictly legal point of view, undocumented individuals by definition are indeed breaking our immigration laws (a civil infraction and not a criminal act) and do not necessarily have a right to remain in the U.S. However, compared to the mass detention and deportation approach, some form of a path to legalization for the noncriminal undocumented is the option that is best for America from both utilitarian and humanitarian points of view.
Where is our humanity and due process? The administration’s current approach is to arrest and detain as many undocumented individuals as possible and no matter their otherwise clean background, family ties and sometimes decades long residences in the U.S. To accomplish this, our government is spending billions to staff our deportation apparatus and acquire warehouses to house detained foreign nationals. We are also diverting precious prosecutorial resources to immigration related cases, and away from drug enforcement and violent crimes. The federal government has had to defend thousands of habeas corpus lawsuits (an unprecedented number in the immigration arena) challenging ICE policies of indefinite detention of undocumented individuals and without the chance at bond. In lawsuit after lawsuit challenging current detention policies, ICE and this administration have been losing, with dozens of federal judges and of all political persuasions scolding this administration for playing fast and lose with the law and Constitution. These courtroom setbacks for ICE policies does not mean undocumented foreign nationals have a legal right to remain in the U.S., only that while defending deportation proceedings they do not need to be stuck in a detention facility, often times thousands of miles away from their homes and families.
When we listen to pundits or friends discuss our current immigration system, terms “doing it the right way” or “wait in line” are often thrown around. What most people don’t realize is that the “right ways” or lines for prospective immigrants are relatively scarce and inaccessible, and that not enough legal immigration options exist to keep up with U.S. employer needs and prospective immigrant interest. Those who spotlight the virtues of legal immigration and “doing it the right way” are not wrong, but fail to take into account that Congress has been unable to enact laws that keep up with our times. Sadly, anytime Congress looks to take measures to allow more legal immigration options, political winds blow furiously against it, featuring screams that foreigners are taking away jobs from Americans.
An honest conversation about the state of immigration law and policy in the U.S. must include a discussion addressing the failures of our decades old policies and the history of how our system blemishes have evolved. Just as important, we must not lose sight of the millions of good human beings at the heart of the discussion, who have indeed broken the law by coming or remaining here illegally, but who have made American their home and have mainly made America a better place.
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