In response to President Trump’s January 25 executive order on border policing, the Department of Homeland Security issued a memo with details about how it plans to carry out the president’s directives. The memo promises to further militarize the Mexican border, expand the nation’s already unprecedented immigration detention capacity, and skirt the immigration court system.
Secretary of Homeland Security John Kelly signed the memo, titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” on February 20, 2017. The memo consists of instructions to the various parts of DHS, including the Immigration and Customs Enforcement (ICE) agency and the Customs and Border Protection (CBP) unit. The Border Patrol is part of CBP. Below is a quick outline of some of the memo’s key provisions.
The memo’s opening paragraph follows the tone set by President Trump and countless Republican legislators at the federal and state levels of government by touting the importance of “faithful execution of the laws of the United States.” Few people seriously disagree with this proposition, but over the last eight years Republicans made a practice of claiming that the Obama Administration had not faithfully executed immigration laws. Though the record clearly indicated otherwise, Republicans frequently pointed to the Obama Administration’s prioritization of certain migrants for enforcement actions as evidence that President Obama and his top immigration enforcement officials were not following the law.
Secretary Kelly’s memo takes a sharp turn from the Obama Administration’s prioritization scheme by expanding DHS’s enforcement priorities so much that there are essentially no priorities.
Detention takes center stage in Secretary Kelly’s instructions to CBP and ICE. The memo calls for an expansion of immigration detention. Specifically, anyone deemed inadmissible or subject to expedited removal is to be detained, space permitting. The memo also instructs DHS personnel to limit parole, a longstanding power by which migrants who are waiting to learn whether they will be allowed to remain in the United States are not confined. Recognizing the significant cost and delay associated with the president’s call for an expanded detention network, Secretary Kelly instructed DHS officials to continue considering who to detain as they have for several decades: based on flight risk and public safety dangers. These are loose standards that frequently result in confinement of many people who show little indicia of either and many indicia that they will neither disappear nor endanger anyone.
Along with this vast expansion to the nation’s immigration detention practice, the memo orders DHS to work with the Department of Justice “to surge the deployment of immigration judges and asylum officers” to the United States-México border. Reflecting his military background, Secretary Kelly’s depiction of a “surge” of immigration judges and asylum officers to the border does not address a key complication: where will these immigration judges and asylum officers come from? Thanks to President Trump’s hiring freeze, there is no reason to believe that the federal government will be hiring more immigration judges or asylum officers. Likewise, we can expect that the ranks of law clerks, security personnel, and other support staff that make the work of immigration judges possible will be depleted by the hiring freeze. As such, we have to imagine that the dwindling pool of immigration judges and asylum officers contemplated by Secretary Kelly will be taken off their current work and reassigned to new work along the Mexican border—and no one will be sent to fill their vacancies. What is to happen to the work they would have been doing in other parts of the country?
Consistent with President Trump’s executive order, Secretary Kelly instructs CBP to begin the lengthy process of hiring 5,000 addition Border Patrol agents. The Border Patrol currently has about 20,000 agents, an all-time high.
Secretary Kelly instructs ICE to expand the controversial 287(g) program. Under § 287(g) of the Immigration and Nationality Act, ICE can enter into agreements with local law enforcement agencies to essentially deputize local police officers to enforce immigration laws as if they were ICE agents. Popular with the Bush and Obama Administrations, the 287(g) program came under widespread criticism about racial profiling and other civil rights violations by local law enforcement officers. The most prominent example of abuse was the 287(g) agreement with the Maricopa County Sheriff’s Office led, at the time, by Trump supporter Joe Arpaio. In December 2011, DHS terminated its 287(g) agreement with the MCSO after the Justice Department found that the sheriff’s office had used the 287(g) authority to engage in repeated, systemic discriminatory policing tactics against Latinx. The memo does not mention any intent to oversee local law enforcement practices to ensure that they do not repeat the civil rights violations of the past.
Despite criticism of the 287(g) program, the Obama Administration never completely terminated it. Instead, it ended the most controversial of the two major types of 287(g) agreements in place: the task-force model in which local law enforcement officers patrolled the streets under their deputized immigration powers. Until its final day, as Secretary Kelly’s memo acknowledges, the Obama Administration continued use of the jail model in which deputized officers reviewed people arrested for a reason unrelated to their immigration status. Because the 287(g) agreement turns on encounters with the criminal justice system, it is a way of identifying potentially removable people who are in the United States without authorization as well as those who are in the United States with the federal government’s permission but who might have violated some provision of immigration law. Expanded use of 287(g) agreements, then, can be expected to result in more unauthorized migrants, lawful permanent residents, and short-term visitors being sent into the immigration detention and deportation pipeline.
Last week the Trump Administration made a splash when a draft memo was leaked contemplating use of the 287(g) program to deploy up to 100,000 National Guard troops to enforce immigration law. Though Secretary Kelly’s final memo does not reference National Guard troops, it does state a willingness “to accept state services and take other actions as appropriate to carry out immigration enforcement pursuant to 287(g).” This is broad and amorphous language that could take many shapes, including potentially deploying troops. Presidents Bush and Obama both deployed National Guard troops to the border, though never in anywhere near the number envisioned by the Trump Administration’s draft memo.
President Trump’s much discussed border wall is the focus of Section F. Secretary Kelly directs CBP to begin planning expansion and construction of the border wall “in the most appropriate locations and utilizing appropriate materials and technology to most effectively achieve operational control of the border.” Clearly this is an attempt to inject some reality into the president’s border wall plans by expanding the scope of permissible structures that might count as a wall. Moreover, by noting that border wall construction depends on congressional funding, the memo necessarily delays the administration’s ability to immediately achieve the president’s vision of “operational control,” defined in his executive order as “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”
In addition, this section instructs the DHS Under Secretary for Management to prepare a supplemental budget request for the current fiscal year and a border-wall funding request for following fiscal year appropriations cycles.
The President has made much of his interest in removing millions of people from the United States. DHS, it seems, is well aware that the immigration courts are severely backlogged. At the end of January 2017, there were 542,411 cases pending in the immigration courts. According to the most recent data, at the end of that month it took, on average, 590 days for the immigration courts to enter a final decision. To move people out of the country and out of immigration detention faster, Secretary Kelly promises to skirt the immigration courts as much as possible. One key tactic DHS will pursue is expanded use of expedited removal.
Since 1996, the INA has authorized DHS to quickly remove people who lack proper documents for admission into the United States, possess fraudulent or invalid documents, or any time in the course of seeking admission into the United States committed fraud or misrepresentation. These individuals can denied the opportunity to go before an immigration judge. Instead, DHS officers make on-the-spot determinations of inadmissibility. Judicial review is limited and, because migrants frequently don’t have access to an attorney, largely nonexistent.
To date, the federal government has restricted application of this expedited removal power to people who cannot show that they have been in the United States longer than 14 days and who were apprehended within 100 miles of the border. Secretary Kelly’s memo notes that expedited removal can be statutorily expanded from 14-days and 100 miles to two years and anywhere in the United States. Importantly, the memo does not specify whether DHS will begin applying expedited removal to the extent allowed by the INA. It merely states that DHS will soon publish a notice in the Federal Register announcing its revamped expedited removal policy. All signs point to expansion.
Any expansion risks catching people who have deep ties in the United States and subjecting them to courthouse run-arounds. Migrants who come within the new expedited removal policy reach would be wise to carry, at all times, proof that they have been in the United States longer than whatever temporal period is announced. By avoiding expedited removal, migrants will at least be afforded a hearing before an immigration judge and the opportunity to hire an attorney.
DHS will begin requiring that some people who are potentially removable from the United States await the outcome of their legal fights in México or Canada if they arrived in the United States from there. INA § 235(b)(2)(C) authorizes DHS to do this, but it has not been standard practice. Secretary Kelly’s memo instructs DHS units to widen its use to individuals who arrived from México or Canada and are inadmissible. Moreover, it instructs DHS to detain these migrants in México or Canada and provide vide teleconference equipment for them to participate in hearing held by U.S. immigration courts.
Worryingly, this could affect asylum-seekers from Central America most harshly since they tend to arrive by land from México and frequently lack any basis for admission into the United States except for their asylum claim.
No word on what the Mexican or Canadian governments.
Sticking to the president’s interest in expanding immigration detention, Secretary Kelly directs CBP and ICE to expand detention capacity near Mexican border. Interestingly, Kelly claims that migrants who are not imprisoned “are highly likely” to fail to appear for immigration court hearings. This is an exaggeration. Though some people certainly fail to appear, I know of no evidence supporting Kelly’s claim. A September 2016 analysis by the Transactional Access Records Clearinghouse, for example, found that “86 percent of individuals that were released from detention turned up for their court hearing when it was finally held.”
Secretary Kelly promises limitations on use of the parole authority, including advance parole. He leaves the details up to the heads of CBP, ICE, and USCIS. It will be interesting to see whether military parole-in-place is eliminated. Under that policy, DHS allows the spouse, parent, or child of active-duty military personnel or past member of the military to enter the United States. Kelly’s memo certainly suggests that military PIP will end.
The implementation memo turns to children who come to the United States alone. Section L redefines “unaccompanied alien children” (UAC) to exclude kids reunited with a parent who lacks authorization to be in the United States. The goal is to keep these kids from benefiting from protections afforded UACs. In particular, by redefining these children the memo exposes them to the Administration’s fondness for expedited removal. It could also expose unauthorized parents to civil removal proceedings and criminal prosecutions for involvement in smuggling their children into the United States.
Judge Andrew Hanen, who famously enjoined DAPA, vigorously encouraged such a position in a 2013 decision. In a criminal prosecution of a person who helped bring a ten-year-old into the United States, Judge Hanen lambasted the federal government for reuniting the child with her mother. This, Judge Hanen claimed, amounted to DHS “completing the criminal mission of individuals who are violating the border security of the United States.”
Speaking of criminal prosecutions for smuggling, Secretary Kelly promises a crackdown on people who “directly or indirectly…facilitate the smuggling or trafficking of alien children into the United States.” Relatedly, he instructs ICE and CBP to prioritize removal or criminal prosecution of people involved in smuggling migrants into the country. While the memo is not clear about whether this includes parents of children, the broad demonization of migrants that appears in the memo and in President Trump’s corresponding executive order certainly suggest that DHS is receptive to prosecute parents for involvement in bringing their children into the United States.
To assist with prosecuting criminal immigration offenses, Secretary Kelly instructs various DHS units to boost resources for criminal immigration offense prosecutions. Under the guise of “violent transnational criminal organizations,” Kelly directs ICE’s Border Enforcement Security Task Forces and the quasi-military Joint Task Forces to expand their role in “counternetwork operations.” Today’s Joint Task Forces are the descendants of Joint Task Force Six, the military unit responsible for killing Esequiel Hernández, Jr., a teen-aged United States citizen tending to his sheep who Marines mistook for a drug trafficker. Hernández was shot and killed near Redford, Texas in 1997. No one was ever held responsible.
Despite raising the specter of violent multinational gangs, the memo takes aim at fairly ordinary activity related to immigration. For example, “illegal entry and reentry, visa fraud, identify theft, unlawful possession or use of official documents” are discussed alongside violent crimes suggesting that, in the eyes of the Trump DHS, all crime is made the same.