The government just put out the blueprint for President Trump’s immigration crackdown
By Dara Lind
The Department of Homeland Security is officially putting the sweeping executive orders that President Donald Trump signed his first week in office into practice — giving the federal government nearly free rein to arrest, detain, and deport unauthorized immigrants wherever it finds them.
On Monday, Homeland Security Secretary John Kelly issued memos to senior officials at the Department of Homeland Security (DHS) that provide instructions for implementing two executive orders President Trump signed January 25, regarding immigration enforcement on the US/Mexico border and within the United States.
Kelly’s memos direct Immigration and Customs Enforcement (ICE) agents to treat most unauthorized immigrants currently in the US as “priorities” for deportation. They direct the government to dramatically increase its capacity to detain immigrants, and dictate that it should detain nearly all immigrants caught near the US border. They instruct ICE to work aggressively deputize local law enforcement agents to arrest unauthorized immigrants. And they make it much easier to deport children who come to the US alone to reunite with their parents — and the parents they’re reuniting with.
Most of the policies laid out in the memos, first signed and issued Friday but later called back for White House approval, won’t change overnight. It’s now the job of agencies, including ICE, Customs and Border Protection (CBP), and Citizenship and Immigration Services (USCIS), to do another round of interpretation and implementation based off Kelly’s memos.
But in some cases — such as the direction to broaden “priorities” — the memos are likely to affect what field agents feel empowered to do. And they’re definitely yet another sign to unauthorized immigrants themselves that they should not feel secure in the United States.
The memos are a fairly straightforward interpretation of the executive orders. They don’t include the more aggressive provisions that were included in a draft version (reported by the AP and posted by Vox on Friday) of the memo on border enforcement, or some of its more inflammatory language. Some of the biggest changes to enforcement policy are likely to come through formal regulation; others (such as a proposal to deputize state National Guard units for immigration enforcement) appear to have been scrapped.
But that doesn’t mean the memos are a moderate step. The executive orders they’re implementing sketched out a forceful crackdown on unauthorized immigrants. That sketch is now beginning to be filled in.
The US has more resources devoted to immigration enforcement than it ever has before — both on the border and in the interior of the United States. That escalation, which happened after 9/11 and the Department of Homeland Security’s founding, was met with a desire to direct those resources in the most strategic way. Under the Obama administration, this meant “prioritizing” ever-more-narrow categories of unauthorized immigrants for deportation; by the end of the Obama administration, unauthorized immigrants living in the US who hadn’t been convicted of crimes were at pretty low risk of being deported.
That era is over. Under President Trump, the massive immigration enforcement “machine” of the US will now have nearly free rein to arrest, detain, and deport unauthorized immigrants wherever it finds them.
Immigrant Rights Advocates Protest At Elizabeth Detention Center Photo by John Moore/Getty Images
Instead of focusing on deporting convicted criminals, the executive order tells ICE agents to focus on immigrants who’ve been convicted, charged, or “have committed acts that constitute a chargeable criminal offense.” Those “offenses” include immigration crimes (illegal entry and reentry are both criminal offenses) and things that are part and parcel of living in the US as an unauthorized immigrant, like driving without a license.
Indeed, the order prioritizes people who have engaged in “fraud or willful misrepresentation in connection with any official matter,” which could apply to anyone who applies for a job and pays taxes under a fake Social Security number.
Furthermore, the executive order tells immigration agents to prioritize anyone they feel is a “risk to public safety or national security” even if they haven’t done any of those things — which is to say, anyone immigration agents want to deport.
Local police will again be deputized to arrest unauthorized immigrants
And ICE will have even more resources than it has right now to carry this out.
The executive order triples the number of agents in ICE’s Enforcement and Removal Operations office. Those agents will be able to resume use of the tool that made it easiest for them to pick up immigrants involved in the criminal justice system.
Trump is resurrecting the Obama-era Secure Communities program, which automatically examined immigration databases to identify people checked into local jails, then allowed ICE agents to ask local officials to hand over any immigrant they wanted to deport. The Obama administration discontinued the program when many cities and counties started refusing to participate in allowing immigrants to be turned over for minor offenses.
And the Trump administration is reinvigorating a program known as 287(g), after the relevant provision of the Immigration and Nationality Act, that allowed ICE to deputize local law enforcement agents to enforce immigration law, including arresting unauthorized immigrants as part of immigration “task forces.” The memos signed by Kelly direct ICE “to engage immediately with all willing and qualified law enforcement jurisdictions that meet all program requirements” for 287(g) agreements. (Unlike an earlier draft, it does not include state National Guard units as a potential 287(g) partner.)
ICE officer putting on his SWAT gear
The memos explicitly refer to these agreements as a “force multiplier” for immigration enforcement. They’re designed to use local law enforcement for the purposes of enforcing federal immigration law — and provide a funnel of unauthorized immigrants who ICE can detain and deport.
President Trump has claimed he’s going to target criminals for deportation, but he’s also shown a tendency to characterize all unauthorized immigrants as dangerous “bad hombres.” Using local police to enforce immigration law makes it easy to depict everyone being deported as a criminal — otherwise, why would local police have come across them to begin with? But in practice, the 287(g) and Secure Communities programs aren’t just baskets to catch immigrants, but vacuums that actively suck them up.
Immigrants could be sent to Mexico first — and formally deported later
It can take years after an immigrant is apprehended for that immigrant to get deported, because immigration courts are massively backlogged. The executive order signed by President Trump lays out a possible solution: sending people back “to the territory from which they came” while their cases are still pending in immigration court.
Basically, it’s a “deport first and ask questions later” strategy.
Under Kelly’s memo, immigration officials would use the “deport-first” strategy for any immigrant apprehended crossing the border who they didn’t think was likely to try to cross illegally again. And the memo directs DHS, as well as the Department of Justice, which runs the immigration courts, to increase its capacity to hear deportation cases over videoconference. That way it can hear cases of people after they’ve been sent back.
Agents might not want to use this option in most cases — it’s not clear how many immigrants would try to cross once, then be content to hang out in Mexico while waiting for their case to be processed instead of trying again. But it’s possible that some asylum-seekers might be willing to wait.
It is (to understate things) not a given that the Mexican government will be okay with the US sending people — especially non-Mexicans — back to Mexico for an indefinite period of time while their cases move through a massively backlogged court system. The measure might be intended to pressure Mexico to do more on its own Southern border to prevent Central Americans from coming north to begin with — but to the extent Mexico’s been effective in preventing people from getting to the US, it’s been in large part because of US support.
Under current policy, border officers have a range of options when they apprehend an immigrant crossing into the US — not all of which involve keeping the immigrant in detention.
The memo signed by Kelly sets a new policy: detention until proven otherwise.
Trump’s executive order told DHS “to ensure the detention of aliens apprehended for violations of immigration law.” The memo spells out what that might mean: Immigrants caught coming into the US without papers will be detained until they are sent out of the US (or ordered to leave), or until they can persuade an immigration officer that they’ll be allowed to stay in the country for good.
The biggest reason mandatory detention isn’t already government policy is that many, many of the immigrants coming into the US without papers are here to seek legal status. According to Customs and Border Protection, nearly half of all unauthorized immigrants apprehended crossing the border in the fall of 2016 (from October to December) were either unaccompanied minors or families traveling together. In most cases, these children and families came from Central America; in many cases, they were seeking asylum from violence there.
Secretary Kelly’s memo implies it might get harder for asylum-seekers to be allowed to stay in the US at all — in or out of detention.
The first step in avoiding deportation and applying for asylum is to establish to an asylum officer that you have a “credible fear” of being persecuted in your home country. Kelly’s memo doesn’t change the standard for passing a “credible fear” screening, but it does tell the director of USCIS to make sure agents “elicit all relevant information from the alien as is necessary to make a legally sufficient determination” — implying asylum-seekers could soon be asked to start providing evidence that they may not possess immediately upon their arrival in the US.
Kelly’s memo allows asylum-seekers to get released from detention if they can meet two tests. First, they have to prove to an asylum officer that they have a “credible fear” of persecution. Then they must prove to an ICE agent that they are who they say they are and aren’t a security risk. Depending on how those standards are set, and how ICE agents decide to implement them, that could result in the detention of tens of thousands of children and families.
Immigrants in detention have a much harder time getting a fair hearing, a lawyer, or time to make their case. This means the government is more likely to send a person who should have qualified for asylum back to her home country, putting her in mortal danger. (It’s a violation of international law for countries to return people to places where they’re unsafe.)
The government doesn’t currently have the capacity to detain this many people, and Kelly’s memo acknowledges that. It doesn’t put the detention policies in place until the government has the space to carry them out.
Even under Obama, the government was working to increase its detention space at the border. But detention is expensive. Deporting someone quickly is cheaper than housing them for years and then deporting them. So the expansion of detention creates a strong incentive for the government to deport as many people as possible without a full court process.
The memo allows the government to deport families seeking to be reunited
In recent years, thousands of “unaccompanied alien children,” mostly from Central America, have come to the US, often fleeing persecution or seeking to reunite with relatives living in the country (or both). Because the processes for detaining and processing these children are so different, they’ve exacerbated the immigration court backlog and taken resources away from other immigration enforcement. And, to the consternation of many immigration hawks, most of them have been allowed to stay in the US in one form or another.
The executive order Trump signed last month tells DHS to make sure that unaccompanied children, “when appropriate, are safely repatriated” to their home countries. The DHS memo suggests two ways to do that: by changing the definition of who counts as an unaccompanied child; and by deporting the relatives of children who come to the US to join them.
child hugging detainee father
Kelly’s memo cites a statistic that 60 percent of children who arrive in the US unaccompanied end up in the custody of a relative. (The Department of Health and Human Services, which is responsible for the care of unaccompanied immigrant children, usually tries to locate a relative to take care of the child because they have limited capacity.) It suggests that children who are reunited with their parents once in the US should no longer be considered “unaccompanied alien children” within the US immigration system — and should therefore be treated as regular unauthorized immigrants and placed in deportation proceedings.
Furthermore, it suggests that “parents and family members of these children” who are immigrants in the US, who often pay smugglers to ensure their children make it safely north, should be considered accomplices to human smuggling and trafficking. It recommends that legal immigrants who pay for their children to come to the US be referred for criminal prosecution — and that unauthorized immigrants who do the same be deported.
Of course, Kelly’s memo didn’t need to spell out that unauthorized immigrants whose children come to the US to reunite with them should be deported. Under his own guidance, if they’ve ever held a job or driven a car, they are now a priority for deportation. They are now not only possible targets, but wholly encouraged ones, for an enforcement machine that is about to be more powerful and less discriminate than it’s ever been.