In the same week that President Trump issued his now infamous executive order suspending refugee admissions into the US and temporarily barring entry to passport holders from seven predominantly Muslim countries, he also issued two other executive orders that affect immigration. These other two orders—“Border Security and Immigration Enforcement Improvements,” which, among other things, directs the immediate construction of a border wall, and "Enhancing Public Safety in the Interior of the United States"—did not receive quite the same level of media attention as the “travel ban,” which has been the subject of already extensive federal litigation. Still, both may have a very broad impact on immigration and immigrant communities in the US. Trump's other executive actions signed early February—including "Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking," which among other actions aims to increase prosecutions for immigration and visa fraud, and "Task Force on Crime Reduction and Public Safety," which will set up a task force to develop "strategies to reduce crime, including, in particular, illegal immigration"— may also signify that the scope of individuals likely to be targeted and deported is widening.
That said, the order regarding public safety in particular draws clear lines in the sand when it comes to one pressing issue in the field of immigration enforcement—specifically who among the millions of “removable” non-citizens living in the US to prioritize for apprehension, arrest, detention, and removal (deportation). Any administration charged with the execution of the immigration laws recognizes that when it comes to enforcement, choices must be made based on the limited resources available.
Specifically, while there may be many millions of individuals who could be removed from the US based on a strict reading of the immigration statutes (individuals who entered without inspection, individuals who overstayed their lawful length of admission, individuals in lawful status who have been convicted of removable offenses under the Immigration and Nationality Act (INA)), the agency has the resources to litigate and effectuate the removals of no more than 500,000 each year. So it must prioritize who among the estimated 11 to 13 million removable people it will prioritize for removal efforts.
Under Obama, Immigration and Customs Enforcement (ICE)–the agency charged with prosecuting removal in immigration court and detaining and deporting immigrants–reached an all-time high of removals. According to government data, nearly 2.5 million removals were accomplished under Obama, which is the highest in history. While immigrant communities and advocates criticized Obama for his historically aggressive approach, the administration claimed that it was prioritizing the removals of individuals with criminal histories and those who were recent arrivals to the US (which included illegal re-entrants as well as new refugees such as those coming from the Northern Triangle).
Many disagreed, pointing out that the “criminal” immigrants who were removed included many people whose only crime may have been status-based offenses (such as driving without a license or using a fake social security number), and that many non-criminal immigrants were often caught up in the raids and other enforcement actions that were purportedly focused on criminals.
Still, the Obama administration set clear priorities. In a key memo issued in November 2014, the administration set forth priority levels for removal: the first priority were those people who were considered a threat to public safety, national security, and who were convicted of serious criminal offenses, as well as recent border crossers; a second priority were those people with multiple or serious misdemeanor offenses, repeat immigration violators and visa program abusers; and a third priority were those people with recent removal orders (after January 1, 2014).
Other memos set forth a number of factors for ICE and other Homeland Security officials to consider when taking administrative or prosecutorial actions with respect to an individual case. For example, the officers were directed to take into account the length of time an individual had resided in the US, their employment history, the existence of US citizen and lawful permanent resident family members, and whether the person was a primary caretaker of US citizen children or other US citizens with mental or physical disabilities or illnesses. By taking into account a number of factors, the idea was to provide a more nuanced and humane approach to enforcement.
Trump’s order expands broadly what constitutes a priority for enforcement. It explicitly calls for the termination of Obama’s “Priority Enforcement Program” and a re-establishment of “Secure Communities”—a program that sent fingerprints and booking information taken by local law enforcement in the course of routine local police matters to ICE and the FBI, who could then request a “detainer” on the person in local custody. (A detainer is a request by ICE for the local law enforcement agent to hold the noncitizen for a period of time beyond when they would normally be released to allow ICE the opportunity to take them into custody for immigration processing.) The Secure Communities program led to the arrests of many individuals that would not have been a priority under the Obama administration’s priority memos, and was formally abandoned in 2015.
Instead of prioritizing those who pose a threat to national security or public safety, or who have been convicted of the most serious offenses, Trump’s new order makes a priority for deportation nearly anyone who entered without inspection (who cannot “affirmatively” show “to the satisfaction of an immigration officer” that they have been physically present in the US continuously for a two-year period prior to the encounter with the immigration officer), as well as individuals whose only criminal offense may have been the use of a fake or stolen social security number, as well as individuals arrested or charged with a crime, but who have not been convicted.
It also makes a priority for deportation anyone that “in the judgment of an immigration officer” may pose a threat to national security or public safety. This is a vastly wider net whose likely result is to make a priority for deportation nearly everyone in the US illegally (the only exception would appear to be visa overstays with no contact with law enforcement)—possibly many millions of people who, until now, were not (at least on paper) priorities for removal. This would appear to match a campaign promise of Trump’s and should please his political base.
While this wildly expansive priorities order did not initially receive a lot of media attention, in the last week immigrant communities have been on high alert with rampant reports of raids, arrests, and high level deportations including that of an Arizona mother who had lived in the US since she was fourteen. In statements and tweets that seemed to contradict each other, the president confirmed that these raids and other enforcements were the fulfillment of a campaign promise, while administration and agency officials explained it was a mere continuation of established fugitive operations and targeted arrests of criminal immigrants. In fact, both could be true–the arrests may be in line with longstanding directives to focus on immigrants with criminal convictions and outstanding removal orders, while at the same time following the new executive order that makes nearly everyone a priority for deportation, without consideration of the humanitarian factors that were part of the Obama administration’s exercise of prosecutorial discretion.
The recent deportation of the Arizona mother is a case in point—she did have a criminal conviction (though it was for a “status-based” crime of using a fake social security number)—and a prior removal order; however, she had been under an Order of Supervision for nearly ten years, faithfully checking in with her deportation officer on an annual basis, and was a mother of US citizen children with long and near exclusive ties to the US, having been brought to the country as a child. These humanitarian factors may well have kept the Obama administration from effectuating her removal order in the past, but are formally ignored under the Trump order, which provides no consideration for humanitarian and other factors.
Even if these recent raids and arrests are–despite Trump’s tweets—only business as usual, it is clear that immigrant communities must now brace for the worst and expect to see far more enforcement actions, including in immigrant enclaves when undocumented immigrants who may not be the object of a particular raid or enforcement action may nonetheless be apprehended. It is also possible that we will see uneven and unpredictable application of this executive order—as we saw with the “travel ban”—and only time will tell who among the millions of new “priorities” for removal will actually be prioritized, given the limited resources. (The executive order also calls for an additional 10,000 ICE officers, but does not provide for increased resources for the immigration courts, which are experiencing backlogs of up to three years and beyond.) Indeed, if everyone is a priority, then no one is. We must wait and see how the administration’s rhetoric meets with the reality of immigration enforcement.
UPDATE FEBRUARY 22, 2017: On Monday, February 20, 2017, the Department of Homeland Security released two “implementation” memos with respect to the two executive orders mentioned in this post. One of these memos, “Enforcement of the Immigration Laws to Serve the National Interest,” explicitly rescinds the majority of the Obama administration’s prosecutorial discretion guidance (with the exception of the 2012 memorandum that created the DACA program), and clarifies that the Trump administration does intend to prioritize removal of large numbers of the unlawfully present immigrant population (without regard to priorities in a resource-strapped enforcement regime) and to expand the “expedited removal” process which eliminates the rights of immigrants to apply for most forms of relief and provides for immediate deportation of anyone in the US who arrived without inspection unless they can show that they have continuously resided in the US for at least two years). While this memo does confirm and clarify fears about the intention of the executive order, there still remains a basic question unanswered—how will the administration prioritize its use of resources if nearly everyone is a priority? We will continue to monitor how these “implementation” memos will be “implemented” and keep readers updated.