DHS Immigration Memos Largely Upend Obama Policies

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Laura D. Francis

The Trump administration is quickly doing away with former President Barack Obama’s immigration enforcement policies with the Feb. 21 release of two memorandums from Homeland Security Secretary John Kelly.

The first memo implements President Donald Trump’s border security executive order, and the second implements his interior enforcement executive order. Both executive orders were released two days before Trump’s travel ban, but they didn’t face the same flurry of litigation.

The order on border security beefs up Customs and Border Protection’s ranks, increases the use of detention of undocumented immigrants and boosts agreements with state and local law enforcement in border areas so they can aid in immigration enforcement. It also starts the planning for the border wall and limits the use of the parole authority to allow in immigrants who can’t get a visa.

The second memo retools interior immigration enforcement priorities, limits the use of prosecutorial discretion and directs the hiring of 10,000 more Immigration and Customs Enforcement officers.

The memos leave in place Obama’s 2012 deferred action for childhood arrivals program, which protects young, undocumented immigrants from deportation and provides them with work permits. Trump had made a campaign promise that he would terminate the program on the first day of his presidency.

They also leave in place Obama’s 2014 memo expanding DACA and creating the deferred action for parents of Americans and lawful permanent residents program. However, the interior enforcement memo says the 2014 actions will be addressed in future guidance. Neither DAPA nor the expanded DACA program ever got off the ground, having been blocked in the course of litigation. The programs were the subject of a U.S. Supreme Court case in 2016 that resulted in a 4-4 split.

DACA Shielded?

“I think it is unclear what the administration’s intentions are” with respect to immigrants with DACA, Greg Chen, director of advocacy for the American Immigration Lawyers Association, told Bloomberg BNA Feb. 21. The interior enforcement memo says DACA is exempted, but the stated enforcement priorities are “very clear” that they will cover “just about everybody.”

A representative for the Homeland Security Department didn’t immediately respond to Bloomberg BNA’s request for clarification.

“Trump is a shrewd negotiator,” Dan Stein, president of the Federation for American Immigration Reform, told Bloomberg BNA Feb. 21. He “knows how to make a deal” and knows that DACA recipients are the “carrot” needed to get certain members of Congress on board with immigration legislation targeting other areas, said Stein, whose organization supports lower immigration levels.

While it would be good to see a “specific rationale” from the administration for keeping DACA in place, Stein said, he’s “willing to wait” in light of the other immigration enforcement policies. At a minimum, the program should “stop taking in new applicants,” he said.

The memos are a “roadmap” for how Kelly wants to proceed on immigration enforcement, Stein said. About 90 percent of “migration deterrence” is “about sending strong messages,” he said. It’s “making clear” that coming to the U.S. illegally is “not worth the effort,” he said.

Kelly’s “knowledge of the value of detention and deterrence is probably his most important asset in generating respect for our borders,” Stein said.

“From our standpoint,” the “big noise here is the express statement” that the president can’t and won’t use what are supposed to be case-by-case discretionary powers to “write wholesale law changes” and admit “whole classes of aliens” that Congress didn’t provide an avenue for, Stein said. The memos also take advantage of “enforcement tools” that Obama “willfully neglected,” he said.

Businesses Not Considered

“The impact that an immediate, sudden enforcement action could have on a small community where businesses” rely on undocumented immigrants “has not been considered at all,” Chen said. Postville, Iowa, “is a perfect example,” he said.

In 2008, ICE carried out a work-site raid at a meat processing plant in the town, arresting nearly 400 undocumented workers. The community was “decimated” by the enforcement action, Chen said.

There are also entire industries, like agriculture, that “depend on undocumented labor and cannot function without it,” Chen said.

“That’s not to say that enforcement shouldn’t happen,” he said. But it needs to be “targeted and smart,” he said. Instead, the administration has “wiped clean any sense of meaningful priorities” and will target all undocumented immigrants, Chen said. “They’re not going to be thinking very carefully about how they deploy enforcement.”

The policies embodied in the memos also “don’t amount to any kind of a solution that is forward-looking for our immigration system,” Chen said. “It is all about enforcement with almost nothing to address the needs of our country,” like family reunification, businesses in need of workers and handling the undocumented population that has been in the U.S. for years, he said. “We are talking about destabilizing our communities.”

‘Panic and Uneasiness.’

There is likely to be a “real sense of panic and uneasiness in the immigrant community” stemming from the administration’s “clear signal” that it’s going to “engage in mass deportations,” Chen said. And the administration has signaled that it’s “going to do so with little regard for constitutional protections like due process,” he said.

Chen pointed to the resurrection of Secure Communities, an ICE program the Obama administration replaced in 2014 because of due process concerns. As part of the program, ICE issues detainers to state and local law enforcement agencies, which are instructed to hold undocumented immigrants in custody pending their transfer to the immigration system.

These detainers are “highly suspect” from a due process perspective because they aren’t grounded in probable cause, the standard for depriving someone of liberty, Chen said. “It’s going to undermine cities’ trust with their communities” and “bankrupt many localities if they get sued” for violating due process rights, he said.

Also problematic is the expansion of expedited removal, Chen said. Under the old policy, undocumented immigrants could be removed without seeing an attorney and without appearing before an immigration judge if they were caught within 100 miles of the border and couldn’t prove they’d been in the U.S. for more than 14 days. The new policy allows for removal of undocumented immigrants caught anywhere in the U.S. who can’t prove they’ve been in the country for more than two years.

That’s going to result in “vast deprivations of due process,” Chen said.

But Stein applauded the move to speed up the deportation process.

“The hidden cost of immigration” is the expense necessary “to adjudicate and to deport people,” he said. “The right to live in this country is a civil benefit,” and much of the removal process goes above and beyond constitutional minimums, he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

For More Information

Text of the memos is available at http://src.bna.com/mlx and http://src.bna.com/mly.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law