By Danny Vinik
January 25, 2017
Donald Trump’s immigration crackdown could bring a dramatic change to street-level immigration enforcement, urging officials to deport broad categories of undocumented immigrants who haven't been convicted of any crimes—a latitude that immigration officers haven’t enjoyed for nearly a decade.
Trump’s two executive orders, signed Wednesday, made headlines for other reasons—a wall along the southern border and the plan to cut off federal funds from sanctuary cities. But for the 11 million people living undocumented in the U.S., the sharp end of the stick is buried in a bureaucratic-sounding section titled “Enforcement Priorities.” The priorities give immigration agents a broad new rein to enforce immigration law, dictating who gets swept up into the system and how the department uses its limited resources.
The new enforcement priorities don’t just mark a sharp change from the more forgiving regime created under Barack Obama, starting in 2010; they represent a break from Trump’s previous commitment to only target undocumented immigrants with criminal convictions. Under the new orders undocumented immigrants are considered a priority if they have been convicted of any crime; have been charged with a crime, even if it has not been resolved; “have committed acts that constitute a chargeable offense”; have engaged in fraud or willful misrepresentation before a government agency; “have abused” public benefits; have received a final order to leave the country but haven’t done so; or are judged by an immigration officer “pose a risk to public safety and national security.”
These could net hundreds of thousands of people without any convictions, experts said—specifically due to the prioritization of people who have received a final order to leave the country but have not done so.
“That’s going to sweep up a lot of families, a lot of folks who have children, a lot of folks who have been here a long time,” said John Sandweg, the former acting director of Immigration and Customs Enforcement agency under Obama.
Immigration hardliners welcomed the new orders as an overdue correction to the Obama-era enforcement priorities, which they said had narrowed to the point where too many undocumented immigrants could stay too easily. The new priorities, they say, simply enforce the existing law, a prerequisite to any type of broader immigration reform.
“You always have two parallel elements of enforcement,” said Mark Krikorian, executive director of the Center for Immigration Studies. “One is the high priority, bad hombres as the president said. And the other is more routine enforcement to make sure that ordinary folks who aren’t raping or murdering anybody are still deterred from lawbreaking.” The new priorities, he added, are “an abandonment of Obama’s radical downgrading of immigration law.”
It’s impossible to come up with an exact total for how many people will be considered priorities under these new criteria; there are no statistics on people who have committed a chargeable offense, for example. But it’s likely to represent a significant share of the undocumented population. For instance, according to data published by Sen. Jeff Sessions last June, nearly a million undocumented immigrants have received final removal orders but remain in the United States—three-quarters of whom have no criminal convictions, meaning that up to 750,000 people will now newly be considered priorities for deportation.
To immigration activists, the move creates a terrifying new immigration landscape, as undocumented immigrants who were previously protected from immediate deportation now find themselves in the government’s crosshairs once again. “This was the biggest worry I had, and this is going to take us back to chaos,” said David Leopold, an immigration lawyer based in Cleveland. “My stomach is turning.”
With immigration reform long stalled in Congress, Obama essentially liberalized American immigration policy via enforcement priorities. The current priorities date back to 2010 when ICE, then led by John Morton, published a four-page document—the Morton Memo—that told immigration agents to prioritize deportation for undocumented immigrants who were recent arrivals, national security threats and people with serious criminal records. All other undocumented individuals were no longer priorities for deportation—about two-thirds of the undocumented population. The priorities were refined further in 2014 so that nearly 90 percent of the undocumented population were no longer deemed priorities, according to an estimate from the Migration Policy Institute.
For many undocumented immigrants, the priorities didn’t provide work permits, but they offered a form of protection for deportation, as long as they lived within the law. All along, though, Obama officials and activists knew that the priorities could be changed by the next president, reversing those protections. They hoped that successive presidents would see the logic in their policies and decline to make dramatic changes to them. On Wednesday, though, their fears came to pass in section 5 of Trump’s executive order on enhancing public safety in the interior.
The new priorities give immigration agents wide authority in the field. For instance, they grant immigration officers the power to make an individual determination that an individual poses a risk to the public—but don't appear to include any oversight to ensure that the officer isn't simply rounding up non-threatening undocumented immigrants. That’s a sharp break from the current priorities, which let officers target individuals who they believe pose a risk to national security, but require a supervisory review to be sure the power isn’t abused.
Prioritizing individuals who have simply been charged with a crime but not yet convicted also gives state and local law enforcement enhanced powers over immigration. An aggressive local police department could arrest undocumented immigrants, even if they don’t have enough evidence to convict them in court. Before even having their case heard, they would immediately become a priority for deportation.
Even where Trump’s priorities appear to agree with Obama’s, there are important differences, specifically for those with criminal convictions. The Obama-era priorities targeted individuals with a specific set of serious criminal convictions or repeat offenders, not simply those with a conviction for driving without a license. The new priorities are broader, including those who “have been convicted of any criminal offense.” Said Sandweg, “By having that clause alone, you are going to sweep up a lot of non-dangerous, non-threatening people, many of whom have been here for a decade or more."
Former Obama administration officials and immigration activists contend that the enforcement priorities were not simply a layer of protection for undocumented immigrants but are also a critical tool for law enforcement, helping strapped departments and agencies focus resources on people who are actually dangerous. The new priorities are so broad, they argue, that it will actually make the country less safe, forcing ICE to shift resources away from targeting dangerous criminals towards those with minor convictions or who simply have been charged with a crime.
“By rounding up this many people, all you do is make it harder and slower to make the real dangerous people out,” said Sandweg. “There’s not enough immigration judges. There’s not enough back end support to get all these people out of the country.” He added, “By shoving all these non-threatening individuals into the system, you’re just delaying removing people who pose an actual threat to the country.”
For more information, go to: www.beverlyhillsimmigrationlaw.com