Who will be deported
The Obama administration issued guidelines for deporting unauthorized immigrants that placed the highest priority on gang members, felons and those who posed security threats. A goal was to concentrate limited resources on the most serious cases, but many Immigration and Customs Enforcement agents complained that the priorities tied their hands, taking away their discretion as to whom to pursue.
Under the new directives, the government “no longer will exempt classes or categories of removable aliens from potential enforcement.” Immigration agents can now focus on picking up and removing anyone charged with or convicted of any criminal offense, even minor ones, as well as anyone already ordered deported, regardless of whether they have a criminal record.
But the Obama guidelines “translated into de facto protections” for people with no legal right to live in the United States, said Dan Stein, president of the Federation for American Immigration Reform, which opposes legalization for unauthorized immigrants. Unless they fell into one of the high-priority categories, Mr. Stein said, “the chance of being deported was virtually zero.”
‘Catch and release’
Under the Obama administration, people caught crossing the border without permission were often released into the United States while their requests for asylum wound through the immigration system, a process that can take years. Most requests are denied, but by then, the immigrant has been living in the United States all that time and may not be easy to find.
The Trump administration has declared an end to the so-called catch and release policy, though it may take awhile to see any significant change. “Catch and release” came about in part because the government had nowhere to hold detainees waiting for immigration decisions. One of the memos released on Tuesday directs officials to expand detention facilities, but it will take time to build centers big enough, or find enough room in jails, to hold the thousands of Mexican and Central American asylum seekers expected to cross the border this year.
The document also raises another alternative: sending migrants back to Mexico to wait out the immigration process, even those who are not originally from Mexico. That proposal comes with its own problems. Though United States law appears to allow it, Mexico’s laws do not, if the immigrant is not a Mexican citizen.
No judge required
Two decades ago, Congress passed a law allowing the government to quickly deport undocumented immigrants who have not been in the United States very long, without allowing them go before a judge.
In practice, the government has used this process, called “expedited removal,” relatively narrowly because of concerns about whether it violates constitutional rights of due process that are granted to anyone in the United States, regardless of immigration status. Since 2002, expedited removal has been applied only to immigrants who have been in the country less than two weeks and were caught within 100 miles of the border. That is because the Supreme Court has held that such immigrants can still be considered “in transit” and not here long enough to qualify for due process protections.
The Trump administration is now planning to use expedited removal as extensively as the original law allows, saying that limits on its use had contributed to a backlog of more than half a million cases in immigration court.
Immigration advocates vowed to challenge the change.
“Someone could be living in Chicago for a year and a half and then be swept off the street by an ICE agent,” said Lee Gelernt, deputy director of the A.C.L.U.’s Immigrants’ Rights Project, referring to Immigration and Customs Enforcement agents. “He is going to be detained and removed right away without ever seeing a judge.”
Role of local police
A program known as 287(g), named for its section of the Immigration and Nationality Act, allows the Department of Homeland Security to train local and state law enforcement officers to work as de facto federal immigration officers, identifying undocumented immigrants in their communities and jails and turning them over to Immigration and Customs Enforcement.
From 2006 to 2013, the program led to 175,000 deportations, according to federal statistics. But investigations and court rulings revealed an ugly side effect: In some jurisdictions, local officers were using their authority to racially profile Latinos. One of the most egregious cases was in Maricopa County, Arizona’s most populous, during the tenure of Sheriff Joseph Arpaio, who a federal judge ruled had discriminated against Latinos in patrols and other enforcement efforts.
The Obama administration curtailed the use of the program, which currently involves 32 agencies in 16 states. The Trump administration wants more agencies to take part, and some have already expressed a desire to do so.