Meet the New Immigration Boss, Same as the Old Immigration Boss (OPINION)

Jan 27, 2017
8:20 AM

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

I’m focusing the first part of my explanation on the latter order, 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:

Sec. 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), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) 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.

Let’s compare Trump’s new priorities to the superseded 2014 Johnson priority memo, which also established guidelines for determining which immigrants were subject to being taken into custody by ICE and removed from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 Trump’s priorities, under President Barack Obama, these were the immigrants who were a priority for removal: those who were threats to national security, border security and public safety; those convicted of crimes other than minor traffic offenses; those who recently violated immigration law and those individuals who were already ordered deported who did not qualify for asylum or another form of relief from deportation.

And just like Trump, Johnson’s memo 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 immigrant has significantly abused the visa or visa waiver programs, 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 immigration boss, same as the old immigration boss.

In addition to the reinforcement of the previous Johnson deportation priorities, one of the other takeaways in Trump’s new executive order includes 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 a mass 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.


Matthew Kolken is an immigration lawyer and the managing partner of Kolken & Kolken, located in Buffalo, New York. His legal opinions and analysis are regularly solicited by various news sources, including MSNBC, CNN, Fox News, The Washington Post, Forbes Magazine, and The Los Angeles Times, among others. You can follow him @mkolken.