The pair of memos for the Department of Homeland Security and sent to US Immigration and Customs Enforcement, Customs and Border Protection and Citizenship and Immigration Services make changes to immigration policy across the board, including toughening asylum criteria, broadening categories of who may be deported and how quickly, giving more discretion to enforcement agents and eroding the privacy rights of undocumented immigrants.
They also call for 10,000 more ICE agents and 5,000 more Border Patrol agents to be hired, goals mentioned in Trump's executive actions. An office for victims of crimes by illegal immigrants, VOICE, is to be established, using funds previously earmarked for advocacy efforts on behalf of undocumented aliens.
Though enforcement priorities will remain undocumented immigrants who have committed crimes, "the Department will no longer exempt classes or categories of removable aliens from potential enforcement," the guidelines state. The classification of "criminal" alien has been expanded to include those who have only been charged with a crime or even thought to have "committed acts which constitute a chargeable criminal offense."
Former President Barack Obama had directed for undocumented aliens with no criminal records be designated low priority for deportation.
The guidelines direct homeland security department personnel to use their discretion and to feel free to arrest any alien they have probably cause to believe is in violation of US immigration laws. But lest they think they have license to be humane, the guidelines instruct, "Prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws."
The expansion of "expedited removal" proceedings will allow aliens to be removed immediately if they cannot prove they have lived in the US continuously for two years, with exceptions only for unaccompanied minors, people seeking asylum or facing great harm, or those who claim to be in the US legally. Previously, expedited removal was only used for immigrants caught within 100 miles of the border within 14 days of coming into the US, or by those who arrived by sea but not at a port of entry.
Enforcement agents are now also to immediately return Mexicans caught at the border to Mexico, a change from the Obama administration policy of holding them while a decision on their status was made.
Personal information about undocumented aliens contained in DHS systems is no longer to be protected by the US Privacy Act.
Regarding asylum seekers, enforcement agents are admonished not to make a determination on whether there is a "significant possibility" the alien could be eligible for asylum and whether there is a "credible fear" until the officer has considered all relevant evidence, though what that might entail is not specified.
According to sources that spoke to Reuters, the administration intends to grant broad discretion to asylum officers.
In 2015, just 18% of asylum seekers whose cases were reviewed by a judge were ultimately granted asylum, according to the Justice Department.
Untouched in the current memos is the DACA program, the Deferred Action for Childhood Arrivals program that blocks undocumented immigrants brought to the US as children from being removed and orders undocumented immigrants who are parents of US citizens to a low removal priority. However, language about the elimination of exempted categories of aliens means the future of DACA is unclear. Trump had promised during his campaign to repeal the program, but has been stepping back recently.
The memos also do not make mention of the use of National Guard troops in immigration enforcement, as reports last week suggested was imminent.
And while children here now may not need to fear for the moment, a new law is proposed that would prosecute parents found to have paid smugglers to bring their children to the US.
Kelly also said he would try to expand cooperation between police departments and immigration enforcement bodies, something some local police departments have been reluctant to do.
Senator Bob Menendez told CNN Sunday that the new guidelines amount to "mass deportation where you indiscriminately pursue any immigrant."
The American Civil Liberties Union was quick to condemn the memos, calling them "cruel" and saying they jeopardized due process in the country. Joanne Lin, senior legislative counsel at the American Civil Liberties Union, tweeted that the memos would support "mass deportation."
— Joanne Lin (@JoanneLinDC) February 18, 2017
ACLU Policy Counsel on Border and Immigration Issues Chris Rickerd called the new provisions "illegal."
— Chris Rickerd (@ChrisRickerd) February 18, 2017
The new guidelines supersede almost all those issued under previous administrations, Kelly said.
A White House official told the Washington Post that the memos were drafts and that they are being reviewed by the White House Counsel's Office, which is suggesting changes.
