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Matthew Kolken on Deportation And Removal

Meet the New Boss, Same as the Old Boss

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Yesterday, there was a tornado of activity on the immigration front coming from the White House. President Trump signed two executive orders relating to immigration. One focused on border security, and the other on interior immigration enforcement.

Iím focusing this explanation on the latter, and more specifically the establishment of new deportation enforcement priorities, which were contained in Section 5 of the interior immigration enforcement executive order. These new priorities supersede the November 20, 2014, memorandum of then Secretary Jeh Johnson.

The new executive order established the following deportation priorities:

5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2) (Crimes), (a)(3) (Security Related Grounds), and (a)(6)(C) (Material Misrepresentation Fraud), 235 (Expedited Removal),and 237(a)(2) (Crimes, Controlled Substances, Firearm Offenses, Domestic Violence, Stalking, Violation of a Protective Order, and Crimes against Children) and (4) (Security Related) of the INA (8 U.S.C. 1182(a)(2), (a)(3),and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:

(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer,otherwise pose a risk to public safety or national security.

Letís compare Trump's new priorities to the superseded 2014 Johnson priority memo, which also established guidelines for determining which immigrants were subject to being taken into custody by ICE and removed from the United States.

Like Trumpís priorities, under President Obama individuals who were threats to national security, border security and public safety, convicted of crimes, other than minor traffic offenses, recently violated immigration law, and individuals already ordered deported who did not qualify for asylum or another form of relief from deportation were a priority for removal.

Also like Trump, Johnson afforded vast discretionary authority to ICE Field Office Directors, USCIS District Directors,and USCIS Service Center Directors to make an independent determination as to whether an individual has significantly abused the visa or visa waiver programs, or basically anyone in violation of immigration law. Moreover, the Johnson memo did not prohibit or discourage the apprehension, detention, or removal of immigrants unlawfully in the United States who were not specifically identified as priorities. Or simply put, the Johnson memo said that ICE and CBP can deport anyone they want.

Meet the new boss, same as the old boss.

In addition to the reinforcement of the previous Johnson deportation priorities one of the other takeaways in the new executive order include the collection of all fines and penalties from immigrants unlawfully present in the United States, as well as from people who facilitate their presence in the United States. This leads me to believe that the Trump administration may be seeking to criminally prosecute individuals who harbor the undocumented. To that end, the trend of criminally prosecuting immigration law violators will continue in the Trump administration.

President Trump also intends to reconnect the link between federal immigration officers and local law enforcement, hire 10,000 additional immigration officers, punish sanctuary cities that prevent or hinder the enforcement of federal immigration law, and reinstate the Secure Communities program that uses the federal immigration and criminal databases to cross check the fingerprints of individuals arrested for State crimes for immigration law violations.

What is of significant concern is not the establishment of new priorities, which are virtually identical to the old priorities, but if we are to take Trump at his word the immigration law will be aggressively enforced at the State level, and individuals found to be a deportation priority will become subject to being taken into custody, presumably held without bond, and depending on the circumstances may be held in custody until their immigration court proceedings have concluded, which could take months if not years.

It will quickly become obvious that the existing infrastructure to house and detain immigrants is vastly inadequate to accommodate an influx of detained immigrants, and that to address the deficiencies FEMA style deportation camps will become the norm.

What may be most troubling, however, is what is contained in the executive order relating to border security. Section 11(c) contains a directive that requires the employment of expedited removal for individuals encountered inside the United States who are in violation of law for not having been admitted or paroled, and that are unable to establish that they have been physically present for at least two years.

Expedited removal (deportation) occurs outside of the context of an immigration court proceeding, there is no right to counsel, and the decision is unreviewable in a court of law. This basically means that anyone who has recently arrived in the United States without inspection, and is unable to express a credible fear of return to their native country will be deported summarily without a hearing. Although concerning,this is also not much of a departure from what we saw under President Obama, as one of the most unnoticed parts of his enforcement strategy was to deport people without giving them the opportunity to see a judge.

The bottom line is this, none of what Trump has done is necessarily unexpected, and most of it we have already seen before. That said, it is time for immigration practitioners to sharpen their pencils, and roll up their sleeves for another fight.

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Updated 01-26-2017 at 10:52 AM by MKolken

Comments

  1. ImmigrationLawBlogs's Avatar
    Matt, there is one very big difference in priorities here, as I discuss in detail in my own blog comment in this same issue of Immigration Daily, January 26.

    Obama's priorities (as you list them above) were for deporting people who were convicted of crimes, while Trump's include people who have merely been charged with crimes but not convicted. Under our law, someone is innocent until proven guilty.

    But Trump is treating even those legally innocent people as criminals for deportation priority purposes (assuming, of course that they are already deportable as EWI's or visa overstays).

    Of course, trashing the presumption of innocence might not be such a big deal

    It has only been part of the Western legal tradition for the past 1,700 years, ever since the time of the Roman emperor Julian.

    Roger Algase
    Attorney at Law
    Updated 01-26-2017 at 02:53 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    There are major differences between Obama's enforcement policies and Trump's, such as in the amount of difficulty required for the officer in the field to know who to arrest. And under Obama arresting someone not in a priority category required high level supervisory approval. In fact, there was a law suit by ICE officers (or were they CBP officers?) over sanctions for guessing wrong on who to arrest.

    The bottom line for Trump enforcement is try to arrest criminals if you can, but pretty much everyone is fair game. Bad policy? Maybe, but bear in mind that no one will be deported unless he is deportable under the INA, no matter what Trump's policies are.

    Nolan Rappaport
    Updated 01-26-2017 at 04:51 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Matt, there is one very big difference in priorities here, as I discuss in detail in my own blog comment in this same issue of Immigration Daily, January 26.

    Obama's priorities (as you list them above) were for deporting people who were convicted of crimes, while Trump's include people who have merely been charged with crimes but not convicted. Under our law, someone is innocent until proven guilty.

    But Trump is treating even those legally innocent people as criminals for deportation priority purposes (assuming, of course that they are already deportable as EWI's or visa overstays).

    Of course, trashing the presumption of innocence might not be such a big deal

    It has only been part of the Western legal tradition for the past 1,700 years, ever since the time of the Roman emperor Julian.

    Roger Algase
    Attorney at Law
    I don't understand what you are getting at? Are you suggesting that people who aren't deportable will be deported because they are in a priority category? It's a safe assumption that Trump intends to deport all deportable aliens. The interior executive order says in several places that he is not going to exempt any groups. The priorities are just an effort to try to get the criminal aliens first. Unlike the Obama administration, there is no safety in not falling under one of Trump's priorities.

    Nolan Rappaport
  4. ImmigrationLawBlogs's Avatar
    No safety net is no doubt accurate, but given the numbers of deportable immigrants that exist, in relation to deportation resources, whether one is in a priority class or not can make a big difference in how long a deportable immigrant actually stays in the US.

    Moreover, Trump has announced that he is giving priority to "criminal aliens" (if they are already deportable on other grounds, such as EWI or overstay), in order to make the public think that he is tough on crime (and terror) above all else rather than focusing on race or religion in his immigration policies.

    Now, he has in effect defined millions of people who are not criminals under our law because they have never been convicted of any crime as criminals, for prioritization purposes. This will certainly help with using immigration enforcement as a means of ethnic cleansing, but it different from prioritizing the real criminals, as Trump had promised to do.

    This also adds an element of George Orwell to Trump's enforcement plan that was not present in Obama's policy. It is this idea of making words (in this case "criminal alien") and reality - as opposed to, for example, his delusional fantasy about "millions" of people allegedly having voted against him "illegally" -

    https://www.nytimes.com/2017/01/23/u...rats.html?_r=0

    mean whatever Trump wants them to mean that makes Trump's presidency a danger to our democracy like none other this country has ever faced before.

    However, this is not to say that it would be a bad thing if most or all of Trump's promises turn out to have been lies.

    I, for one, am not convinced that the Mexican wall will ever be built. You yourself, Nolan, have given many sound reasons why this would not be feasible or make much sense.

    Nor am I convinced that there will ever be a Muslim registry. Trump's promise to abolish DACA on the first day of his presidency was clearly not fulfilled, and some of his supporters on the Alt-Right are reportedly quite upset about this.

    But when Trump changes his mind about something (as every president has the right to do). he quite often denies that he ever had the original intention in the first place. This shows an adversarial relationship with reality which is a dangerous sign in the psychological makeup of any individual, and is exceptionally dangerous when that individual holds the most powerful office in the world.

    I am very far from being alone in having these concerns, According to the legendary Watergate reporter Carl Bernstein, even some officials in Trump's own party are questioning his stability.

    http://www.alternet.org/media/waterg...amid-uncharted

    We saw one of many examples one could name of this tendency when, after many years, Trump finally gave up his birther attacks on Obama, and then falsely blamed Hillary Clinton for the attacks instead of himself.

    http://pbs.org/newshour/rundown/ap-f...claim-clinton/

    However, if Trump abandons the Wall, the Muslim registry and mass deportation and wants to blame Hillary Clinton (or the New York Times or CNN) for originating these ideas instead, I will not complain - as long as Trump does in fact abandon these proposals.

    Roger Algase
    Attorney at Law
    Updated 01-26-2017 at 08:35 PM by ImmigrationLawBlogs
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