By Robert Kahn
On Friday, hours after The Associated Press released a leaked draft of a Department of Homeland Security memo detailing plans to deploy up to 100,000 National Guardsmen to arrest immigrants in 11 states, President Donald Trump blasted “The FAKE NEWS media” as “the enemy of the American people! SICK!” and his top aides denied the truth of the memo. Also Friday, Homeland Security issued two more memos, repeating entire pages of the leaked memo virtually verbatim — leaving out only the parts about deploying the National Guard.
Under any other president, the rapid turn of events on a single day would have been extraordinary. Under this 30-day-old administration, it seemed just more of the same, in multiple ways:
It demonstrated Trump’s hard line on deportation and immigration;
It escalated his already difficult relations with the press — calling them not just an enemy of his administration, but an enemy of the people;
It revealed an administration in disarray, with the White House press secretary seemingly unaware of events unfolding simultaneously at the Department of Homeland Security;
And it showed the administration’s difficult relationship with the truth.
Timeline of Friday’s Events
At about 8:30 a.m. EST, The Associated Press released a long story with a link to a draft of the Jan. 25 DHS memo, “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies.”
This 11-page draft says: “It implements new policy designed to deter illegal immigration” in line with Trump’s Jan. 25 executive orders on immigration, and it “supersedes all existing policy.” Government sources told the AP the draft memo was still being circulated among immigration offices on Feb. 10.
As is customary with breaking stories of important news, the AP issued repeated write-throughs on Friday — at least eight of them — adding comments from informed sources.
By 1 p.m. EST, newspapers and wire services were reporting the story around the world, with comments from White House press secretary Sean Spicer saying: “That is 100 percent not true. It is false. It is irresponsible to be saying this. … This is not a White House document.”
Only The Guardian, based in London, added the observation: “Using the present tense, he added: ‘There is no effort at all to round up, to utilize the National Guard to round up illegal immigrants.’” (Italics added.)
The Guardian also was the first news outlet to report that Spicer’s comment, “This is not a White House document,” was irrelevant, as no one had reported that it was. The draft had come from the Department of Homeland Security. In another semi-denial that day, deputy White House press secretary Sarah Huckabee Sanders said that DHS Secretary John Kelly did not “put pen to paper” to write the memo.
At 4:48 p.m. Friday, Trump tweeted: “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!”
This message had been preceded by a Trump tweet, quickly erased, that did not include ABC or CBS as enemies of the people, but ended with the word “SICK!”
However, also Friday, DHS Secretary Kelly issued two new memos, repeating entire sections of the Jan. 25 memo, including an entire page that immigration attorneys say indicates the administration plans to use undocumented children as bait to recapture the children with their parents, and accuse them all of fraud.
The Feb. 17 memos also repeat instructions to deputize local and state officers to perform the duties of federal immigration officers, and prevent refugees from seeking political asylum.
Under federal law, refugees are entitled to political asylum if they can demonstrate “a well-founded fear of persecution” in their homelands for reasons of race, religion, nationality, political opinion or membership in a social group. Under all the new memos, state and local officials are deputized to determine whether immigrants have a “credible fear” of persecution — a tougher standard — and if not, local enforcement agents can put them on a fast track to deportation, without allowing them even to apply for asylum.
Kelly’s Feb. 17 memos — the first of which six pages long, the second one 13 pages — state that they are to be used to implement Trump’s two executive orders on immigration, both of Jan. 25.
The first memo, “Enforcement of the Immigration Laws to Serve the National Interest,” implements the executive order, “Enhancing Public Safety in the Interior of the United States.” The second Feb. 17 memo, “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” implements the executive order, “Border Security and Immigration Enforcement Improvements.”
Most disturbing to immigration attorneys with years of experience representing refugees is the section called “Proper Processing and Treatment of Unaccompanied Alien Minors Encountered at the Border” in two memos.
Save for a few word changes, these five paragraphs from the Jan. 25 memo are repeated verbatim in the second memo of Feb. 17.These paragraphs object to Obama-era protections for children who enter the United States without parents or adult guardians.
An influx of unaccompanied minors, mostly from Central America — the memos say there were 155,000 of them in three years — caused alarm in the United States, from humanitarians on one side and anti-immigrant forces on the other.
“Approximately 60 percent of minors initially determined to be an ‘unaccompanied alien child’ are placed in the care of one or more parents illegally residing in the United States,” the draft memo of Jan. 25 and the second memo of Feb. 17 say, identically.
They continue: “However, by Department policy, such minors maintained their status as an ‘unaccompanied alien child,’ notwithstanding that they no longer met the statutory definition because they were in the custody of a parent in the United States who could provide care for the minor.”
The paragraphs conclude with slight changes of wording, the Feb. 17 memo more explicitly accusing the parents and children of “abuses.”
“Exploitation of that policy led to abuses by many of the parents and legal guardians of those minors and has contributed to significant administrative delays in adjudication by immigration courts and USCIS.”
Immigration attorneys describe that as an invitation to use children for bait.
One explained it this way: Children’s addresses in hand, ostensibly to be used for notice of hearings, the family’s “adjudication by immigration courts,” no longer subject to “significant delays” under the system of “expedited removal” described in all three memos, the entire family may be rounded up and sent to one of the new border prisons called for in the memos.
Though omitting calls for the National Guard, the second round of memos, like the first, calls the use of state and local officials “highly successful force multipliers” for the expedited removals. Both rounds of memos also call for hiring 5,000 to 10,000 new Border Patrol officers, sending a fleet of extra immigration judges and hearing officers to the border, and construction of new border immigration prisons.
Both rounds of memos include statements that are simply not true, such as a recent “surge of illegal immigration at the southern border,” though Border Patrol arrests last year were the fifth-lowest since 1972.
Both rounds of memos state: “The vast majority of unaccompanied alien minors arriving in the United States were smuggled in by … Mexican drug cartels, Central American gangs, and other violent transnational criminal organizations,” though there is no evidence for this.
Senate Minority Leader Chuck Schumer, D-NY, denounced the first memo as “despicable.”
Sen. Kamala Harris, D-California, called it “deeply disturbing.”
Both made the comments before news arrived that the draft memo had been replaced by the memos of Feb. 17.
On Saturday, The Washington Post reported that a White House official said the new memos are “drafts and that they are under review by the White House Counsel’s Office, which is seeking some changes.”
All the memos are from DHS Secretary Kelly to the acting directors of U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, and one or more other high-ranking officials.