Buried in President Donald Trump’s executive order for a crackdown on so-called “sanctuary” jurisdictions, signed Wednesday, is his administration’s first official statement of which undocumented immigrants it will classify as a deportation priorities.
The short answer is: almost anyone.
“It’s pretty much designed to include whoever they want to include,” immigration attorney David Leopold told The Huffington Post. “It’s written by a smart lawyer. It’s written to include everybody, while looking like it’s chasing criminals. It’s carte blanche for Trump’s deportation force to pick up anyone they want to.”
Trump campaigned on a platform of scrapping protections for immigrants who arrived illegally as youths and sharply ramping up deportation efforts. Once elected, he appeared to backtrack, saying in his first televised interview that he would focus on undocumented criminals ― though he offered a wildly high overestimate of that population’s size, at “probably 2 million, it could even be 3 million.”
In subsequent statements, White House press secretary Sean Spicer has also said the Trump administration would focus on deporting criminal offenders. To date, the Deferred Action for Childhood Arrivals that protects undocumented immigrants who came as youths and allows them to work legally remains in place.
But section 5 of the executive order on sanctuary jurisdictions describes enforcement priorities that flatly contradict those statements and put the vast majority of undocumented immigrants in the country at greater risk of removal. If Immigration and Customs Enforcement were directed to follow these guidelines, the agency would have to scrap entirely the prosecutorial discretion policies of the Obama era that focused attention on removing people with criminal records.
The first group on the order is any immigrant convicted of any crime. That categorization is so broad that it would include people charged with traffic offenses and convictions for small amounts of marijuana, an offense that eight states and the District of Columbia have legalized in recent years.
This scheme alone would widely broaden the discretion that ICE has operated under since 2011.
It’s written to include everybody, while looking like it’s chasing criminals. Immigration attorney David Leopold
But it goes on to include people who have “been charged with any criminal offense,” or who “committed acts that constitute a chargeable criminal offense.” The latter category is so broad that it could be used to presume the guilt of anyone who has worked illegally in the United States, even if the person has a spotless criminal record.
The wording is also vague enough to include immigrants living in the United States on valid visas who are arrested for petty crimes, according to Leopold.
Those who “have engaged in fraud or willful misrepresentation in connection with any official matter” likewise could be interpreted to include the presumed offense of working without authorization in this country, regardless of whether they’ve had problems with the law.
As if these categories were not expansive enough, the last subsection gives immigration officers discretion to remove anyone they deem to “pose a risk to public safety or national security,” with no stated criteria to make that call.
These changes are likely more significant than either the border wall or the threat to crack down on sanctuary jurisdictions, according to former acting head of ICE John Sandweg.
“A lot the things in those [executive orders] are not going to be implementable without massive appropriations from Congress,” Sandweg told HuffPost. “But the thing that’s going to have an immediate and incredibly detrimental impact are the new priorities.”
When Sandweg worked at the Department of Homeland Security, he said, they would receive reports from local jurisdictions of roughly 100,000 undocumented immigrants getting stopped for driving without a license or similar traffic violations every year. The agency adopted its discretion policies largely to avoid spending all its resources rounding up people with otherwise clean criminal histories, who might have U.S.-born kids and longstanding ties to the country.
With Trump’s new priorities, those changes will be wiped away.
“It’s going to weaken public safety,” Sandweg said. “When you make all those people priorities, you’re spending all of your resources and you’re making it very hard to focus on the people who actually pose a threat to public safety ― violent felons or criminal gang members … You also disincentivize the agents from doing the really hard work of finding the serious threats and incentivize them going after the low-hanging fruit.”
ICE distinguishes between two types of removals: those conducted at the border and deportations from the interior of the country. Border removals have long made up the majority, and administrations from both parties consider anyone crossing illegally priority for deportation, unless the person is fleeing persecution, an unaccompanied child or vulnerable in some way. Most of the 11 million undocumented immigrants who have resided in the United States for years, on the other hand, were not considered deportation priorities after 2011 unless they had serious criminal records or had been deported in the past.
Randy Capps, a research director with the nonpartisan Migration Policy Institute, said that in practice, ICE’s focus will likely remain on people who one way or another get stopped by Border Patrol or police. He likened the priorities to the Obama administration’s policy in its early years, before adopting its discretion policies, though he said Trump’s priorities were perhaps a bit more expansive.
But he also said the vagueness of its terms gives law enforcement wide latitude.
“That’s obviously a very slippery slope,” Capps told HuffPost. “It leaves it very great discretion ― not just to ICE officers, but also to local police officers ― as to what constitutes a public threat or whether someone may have committed a criminal act that hasn’t been proven in a court of law.”
The Trump administration appears to be looking to local law enforcement to feed them precisely the kinds of cases the Obama administration came to view as low priorities. Trump’s executive order on sanctuary cities calls on ICE to revive the much-criticized Secure Communities program, which was scrapped back in 2014.
Referred to by its critics as “S-Comm” to avoid using its self-aggrandizing name, the program was used under Obama to sweep undocumented immigrants into the federal government’s deportation dragnet by requiring local jurisdictions to share fingerprint data directly with ICE, then hold those people for whom the agency issued detainers.
That approach routinely ensnared people suspected of minor crimes, or no crime at all. In an often-cited criticism, undocumented women who called the police because of domestic disputes wound up in deportation proceedings through Secure Communities because police in many jurisdictions sometimes arrest both parties after an altercation.
“Sanctuary” jurisdictions that decline to reflexively hold undocumented immigrants solely at the request of ICE have become more brazen in their opposition to the federal government’s use of local police and jails to enforce deportation policy since Trump’s election.
But many Republican-led jurisdictions have taken the opposite approach, welcoming the opportunity to collaborate more closely with ICE. The order encourages the expansion of 287(g) agreements that allow the federal government to train local police to take on a role in immigration enforcement.
In the past, those agreements have at times been used to create task forces that play an active role in arresting undocumented immigrants ― most notably by former Maricopa County Sheriff Joe Arpaio. The Department of Justice found in 2011 after a three-year investigation that the task force had racially profiled Latinos ― a problem documented with 287(g) task forces in other parts of the country as well.
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