By Ray Chen, Emerson National Hunger Fellow at the Office of Public Witness
On February 20, 2017, DHS Secretary John Kelly issued two memoranda [1, 2] that guides DHS offices and personnel on how the department will fulfill the executive orders President Trump signed earlier in January [1, 2]. The memos detail a radical departure from more community-friendly guidelines that were adopted towards the end of the Obama administration. Generally, there will be much stricter immigration enforcement and subsequent expansion of the immigration system. It is still unclear as to how these memos will affect immigration enforcement on the ground, but they provide us with general trends we need to be aware of.
1. These memos rescind all previous DHS guidelines except the Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans memos, including the memo that enforce sensitive locations, which grant churches a layer of protection when providing sanctuary, and memos that protect vulnerable populations.
All conflicting DHS guidelines were rescinded except for the 2012 DACA memorandum and the Nov 2014 DACA+/DAPA memorandum, which allow deferred action and work authorization for undocumented people who enter the country as minors and parents of US citizens or lawful permanent residents.
However, it is unclear what this will look in practice, but some clues offer us some insight on the following guidelines:
● Enforcement actions at sensitive locations. The sensitive location memo instructs ICE officers to avoid enforcement activity at places of worship, schools, medical facilities, religious or civil ceremonies, and public demonstrations. The memo protects the people who are housed in places of worship in the Sanctuary Movement. This guideline is currently still up on the DHS FAQ page. However, this may be only temporary, and it is important to note that there have been reports of enforcement actions adjacent to these sensitive locations (i.e. on public road next to a school).
● Protection for victims or witnesses of crime. On Tuesday, Apr 5, DHS spokesperson says that witnesses or victims of crime are not immune to deportation (the Hill). This can lead to decreased public safety, as undocumented people will be less likely to report crime.
● Protection for other vulnerable populations. Previous guidelines have deemed certain groups of people as not an enforcement priority for humanitarian reasons, such as primary caregivers of children, individuals with serious mental disabilities or physical illness, and pregnant and nursing mothers. However, the memo that allows for this flexibility was specifically named to be revoked in the new memos.
2. These memos end “catch and release,” which allowed undocumented people without criminal records to not be detained, and restrict exemptions from detention to a very few people, greatly increasing the population targeted for detention.
These memos specifically called for an end to “catch and release,” which loosely describes the practice of not detaining undocumented people unless if they meet certain criteria for priority removal such as having been convicted of a felony or being a gang member.
With these new guidelines, the only people exempted from detention are: People who are being removed from the US; People granted relief from removal or with valid immigration status in the US; People who withdraw an application for admission voluntarily and leave the US; People required to be released by statute, judicial order, or a binding settlement agreement; People granted parole under the DHS; People who an asylum officer finds has a “credible fear” of persecution or torture, pose no security risk, and agree to comply with any additional conditions of release.
Very few people fit the above criteria, and there would need to be massive expansion of detention facility and personnel to make these detentions a reality. The guidelines vaguely state that ”detention resources should be prioritized based upon potential danger and risk of flight.” The memos also specifically name a restriction on the use of parole, adding that parole can only be granted in “demonstrated urgent humanitarian reasons or significant public benefits.” Further regulations that clarify the use of parole power is expected.
3. These memos expand the definition of who is considered criminal, thus prioritizing the removal of virtually all undocumented people.
These memos rescind the Priority Enforcement Program, which restricted the criminal offenses that are prioritized for removal, and returns to the Secure Communities Program. Furthermore, it expands the department’s enforcement priorities to also people who have been
● convicted or charged with any criminal offense,
● committed acts that constitute a chargeable criminal offense,
● engaged in fraud or willful misrepresentation,
● have abused any public benefits programs,
● have a final order of removal, or,
● as deemed by an immigration officer, poses a risk to public safety or national security.
These criteria are broad and ambiguous, and can cover petty offenses such as jaywalking or even simply “improper entry by alien.” There is also a specific focus on immigration offenses committed at the southern border.
4. These memos restrict prosecutorial discretion and expand expedited removal so that more people are deported without due process of law.
In contrast to previous guidelines that encouraged prosecutorial discretion for vulnerable groups, these memos say that “shall not be exercised in a manner that exempts or excludes a specific class or category of aliens from enforcement of the immigration.” The General Counsel will issue further guidance on what this will look like in practice.
Furthermore, there is an expansion of the use of Expedited Removal that allows for the removal of arriving undocumented people at the discretion of immigration officers, without further judicial hearings or review. Before the memo, expedited removal had only been used within 100 air miles of the border for people who have only been in the US for less than 14 days and people arriving to the US by sea other than at a port of entry. This memo seeks to enforce removal without further hearings or review for anyone who cannot prove that they have been continuously present in the US for at least two years. The specific guidance has not yet been developed, and will be published in the Federal Register.
5. These memos call for increased state and local law enforcement cooperation with federal immigration enforcement agencies.
Under the Priority Enforcement Program that has now been dismantled, there has been a shift away from state and local law enforcement agencies assisting in the enforcement of federal immigration law. Returning to the Secure Communities program, local and state enforcement can detain an undocumented individual for up to 48 hours additional hours so that ICE officers can apprehend the person, regardless of the type of crime the person had been charged for. Many civil rights groups have criticized this hold as unconstitutional detention.
Furthermore, the memo calls for the expansion of the 287(g) program in the border region, which allow for written agreements between state and local governments to authorize their law enforcement agencies to perform the functions of a federal immigration officer. The 287(g) program had been restricted after it came under criticism for encouraging racial profiling behaviors from local law enforcement and putting communities in dangers as a result of fewer crimes being reported for fear of deportation.
The memo also calls for the expansion of the Criminal Alien Program (CAP), which is facilitated by increased state and local cooperation. CAP focuses on expediting securing a final order of removal for undocumented people who are incarcerated so that the person is deported without even being taken into ICE custody.
6. These memos call for the expansion of detention facilities & enforcement staff.
To implement the above policies, the memos call for the hiring of an additional 10,000 ICE agents and other associated operational, mission support, and legal staff, 5,000 additional border patrol agents, and 500 air and marine agents or officers. The memos also call for resources to be allocated to expanding detention capabilities and building a border wall. Congress will have to allocate enough funds in the federal budget to the DHS for the department to make this expansion a reality.
7. These memos create mechanisms to reinforce the narrative of the “criminal alien.”
Most ostentatiously, the memos establish the Victims of Immigration Crime Engagement (VOICE) office, which will ensure that victims of crimes committed by undocumented people and the victims’ families have information about the offender. Furthermore, the memos call for a monthly report of data on alien apprehensions and releases that include “country of citizenship, convicted criminals and the nature of their offenses, gang members, prior immigration violators, custody status of aliens, and if release, the reason for release and location of their release, aliens ordered removed, and aliens physically removed or returned.” The memos also calls for a weekly report to the public of non-federal jurisdictions that release aliens from their custody, particularly spotlighting cities that have adopted “sanctuary” policies and do not fully cooperate with ICE officers.
In contrast to prior protocol, the memo declares that the Privacy Act as now only covering US citizens and lawful permanent residents, thus facilitating the release of personal identifiable information to the public by these regular reports and the VOICE office. Under the guise of transparency and accountability, the department is releasing information that can be used as fodder to feed the growing hysteria around “criminal aliens.”
The memos also cover other policy changes, such as ones to collect authorized civil fines and penalties from undocumented people and those who facilitate their presence, to return arriving unauthorized migrants to the contiguous country while they wait for their removal proceedings, regardless of their country of origin, and to change the definition of who qualifies as an unaccompanied minor.
Overall, these memos show that this administration seeks to greatly expand immigration enforcement, and that any undocumented person can be targeted for removal. However, it is unclear how these policies will actually look in practice. It is important to continue watching out for new guidelines that more specifically describe how these policies look on the ground.