ON TUESDAY, THE Department of Homeland Security released a pair of memos laying out how the agency intends to implement President Donald Trump’s executive orders on domestic immigration enforcement. In addition to calling for a massive increase in the number of immigration agents and the deputizing of local and state law enforcement across the country — described in the documents as a “force multiplier”— the memos dramatically expand the range of people who can be deported without seeing a judge.
“I see now what the plan is,” Greg Siskind, a Tennessee-based immigration attorney and member of the American Immigration Lawyers Association board of governors, told The Intercept. “Their plan is basically to have everybody thrown out of the country without ever going to court.” Additional immigration attorneys and legal experts who spoke to The Intercept shared Siskind’s concerns, describing various elements of the DHS directives and the executive orders they reflect as “horrifying,” “stunning,” and “inhumane.”
“This is the broadest, most widespread change I have seen in doing this work for more than two decades,” Lee Gelernt, a veteran immigration attorney and deputy director of the ACLU’s national Immigrants’ Rights Project, told The Intercept. “After 9/11 we saw some extreme policies, but they were largely confined to particular areas around the relationship between immigration and national security. Here what we’re seeing are those types of policies but also much broader policies just dealing with immigration generally.”
“I expected bad based on Donald Trump’s campaign rhetoric,” added David Leopold, a Cleveland-based immigration attorney and past president of AILA. “Then when I read the executive order, I expected really bad … but I’m absolutely shocked at the mean-spiritedness of this.”
The lawyers weren’t alone in raising concerns. Rep. Bennie G. Thompson, ranking member of the House Committee on Homeland Security, said in a statement that the memos show the Trump administration is “more concerned with attempting to fulfill misguided campaign promises than doing what is best for the safety and security of the country” and “dead set on creating a massive deportation force and labeling anyone undocumented for expedited removal just to boost deportation numbers.” In an interview with the Washington Post, John Sandweg, a former acting director of U.S. Immigration and Customs Enforcement and former acting general counsel of DHS, added, “A lot of this is designed to put up numbers — but in doing so, you diminish the impact on public safety.”
The Intercept reported on the significance of Trump’s orders earlier this month, revealing how DHS was already beginning to quietly implement the directives. Tuesday’s memos made that implementation all the more official.
The guidance tracks closely with the executive orders Trump signed in January, confirming, for example, that ICE is now prioritizing the deportation of virtually all immigrants in the country without authorization, including individuals with no criminal records and others whose only offenses involve low-level, nonviolent immigration violations or the falsification of documents to obtain work. According to experts, this range of individuals includes essentially all of the 11 million undocumented immigrants in the U.S., with the exception of the roughly 740,000 individuals protected under the Obama-era Deferred Action for Childhood Arrivals program. The memos also institutionalize a hardening of the nation’s asylum system and call for the criminal prosecution of immigrant parents who attempt to have their children transported to the U.S. without authorization.
A number of the measures called for in the memos will not happen immediately — it will take time, money, and congressional approval to appropriate the billions of dollars needed to build a network of immigrant detention centers along the southern border with Mexico, for example, and to hire 5,000 new Border Patrol agents and 10,000 more ICE agents. There are certain to be legal challenges to the implementation of the directives as well. Practical hurdles aside, however, the policy shifts Trump ordered — and that DHS has now signed off on — reflect major changes in the world of domestic immigration enforcement.
Crucially, the guidance expands the use of a deportation procedure called expedited removal — the means by which the government can swiftly deport an individual who is not authorized to be in the country without a hearing or a judge’s approval. Under the Obama administration, the process had been mostly limited to undocumented immigrants detained within 100 miles of the border who could not prove they had been in the country continuously for 14 days or more. The Trump administration has scrapped that policy, opting instead to use the full force of the law to expand expedited removal nationwide and require immigrants to prove up to two years of continuous physical presence in the country in order to avoid deportation proceedings.
The use of expedited removal has steadily expanded over the last two decades, accounting for more than 40 percent of all Obama-era deportations in 2013. Under the law, a mid-level immigration bureaucrat is empowered to act as prosecutor and judge in an individual’s immigration case. Due process that would apply in other cases, like the right to an attorney or a hearing before a judge, disappears in favor of a mechanism intended to facilitate rapid deportation.
Claiming asylum is one of the only ways to legally defend against expedited removal. Individuals in expedited removal claiming asylum are entitled to a so-called credible fear interview before an asylum official. If they pass the low threshold necessary to demonstrate a credible fear of being returned to their country, they are then entitled to make their case before a judge. If the judge approves their case, asylum can be granted — if not, the removal proceedings go on. The vast majority of people who undergo credible fear screenings pass — 88 percent in 2015 — and move on to be seen by a judge. This has contributed to a historic backlog of immigration cases, which is exacerbated by a shortage of immigration judges nationwide.
The expansion of expedited removal has immigration lawyers, and some U.S. immigration officials, deeply concerned. Chief among those concerns is a fear that DHS will make passing credible fear screenings more difficult, thus allowing more people to be deported without seeing a judge. According to one senior U.S. immigration official, speaking to The Intercept on condition of anonymity, those changes are already in the works. As DHS rolled out its memos earlier this week, leadership at U.S. Citizenship and Immigration Services distributed new guidelines making a number of changes to the credible screening process. The guidelines detailed in the internal communications, reviewed by The Intercept and set to go into effect next week, would place added requirements on asylum officials to confirm that the fear described by asylum seekers is credible, including through a new checklist of questions and submission of a written analysis in cases where a positive determination is made.
“Immigration advocates should prepare for a storm of negative screenings,” the official said.
In order to save money and reduce the strain on detention facilities in the U.S., DHS and the Trump administration have also called for individuals who cross the border but are deemed unlikely to do so again to be deported back “to the territory from which they came,” where they will be given the opportunity to adjudicate their cases “via video teleconference.” In practice, this could mean deporting people to Mexico even if they are citizens of other countries.
In comments to reporters this week, DHS officials said the plan would include individuals in removal proceedings who are claiming asylum — seemingly a reference to individuals in expedited removal proceedings — and confirmed that Mexico is the country the Trump administration has in mind for unloading potentially tens of thousands of deportees. While the Mexican government has responded furiously to the proposal, the USCIS internal communications reviewed by The Intercept do provide guidance on returning asylum seekers to countries that are not their own.
Exactly how all of this will play out clearly remains to be seen. According to the U.S. immigration official, if expedited removal is expanded without an increase in judges, the backlog of individuals who do manage to pass their credible fear screenings will grow significantly. Because the Trump administration has taken a hard-line stance against so-called “catch and release” practices, this expanded population would be held in detention. Those extended stays in detention waiting to see a judge could then result in individuals who should have been granted asylum giving up and accepting deportation. “Being detained is hard for these people,” the official said. “They aren’t criminals.”
The Intercept reached out to USCIS for comment on the screening changes but did not receive a response by the time of publication.
In an interview with The Intercept, Margo Schlanger, formerly the head of civil rights and civil liberties at DHS and now a law professor at the University of Michigan, said the enforcement regime reflected in this week’s DHS memos would provide boundless opportunities for abuse. Schlanger pointed out that language in the memos does call for a joint DHS and Department of Justice effort to oversee a “surge” of judges in detention centers along the border, indicating one potential effort to address the enormous backlog of open cases in the nation’s immigration court system. The expansion of expedited removal is another, she said.
“The basic constraint on enforcement in immigration was previously the processing speed of the immigration courts and the detention capacity,” Schlanger explained. “The idea is to increase the capacity of the immigration courts, plus to bypass the courts for as much of the population as possible by using the full scope of authority possible under the expedited removal statute.”
In other words, she said, “You make it so a lot of people don’t have to go to immigration judges and then you massively increase the immigration judges.”
“If what happens is what seems to be contemplated by this memo, an expansion of who’s covered by expedited removal, we’re going to get deportations of people who actually have a right to stay here,” Schlanger said. “There’s no question about it. … If we get the system that seems to be in here, where the idea is you deport them and then you have like a phone link to some building in Mexico — the idea that you’re going to get accurate adjudication doing that is laughable.”
Location aside, Schlanger said the DHS memos indicate a preference for having more immigrants in detention as a means to achieve faster deportations. Outside of detention, immigration cases can take years to adjudicate. That’s typically not the case when the person in question is in custody — though there have been significant and egregious exceptions in that area as well, particularly among women and children seeking asylum from Central America, who were held in family detention centers under the Obama administration.
“It’s quicker because … you don’t have to go get them, you don’t have to go find them,” Schlanger said. “It’s also quicker because it’s much, much harder for them to find and get lawyers when they’re there.” She added, “This looks like an effort to switch everyone from the non-detained docket to the detained docket.”
If that is indeed the road DHS is going down, Schlanger said, another critical issue presents itself. “If there’s a massive increase in detention beds, how are the beds going to be run in a way that’s humane and safe and constitutional?” she asked. “There’s a whole infrastructure that is needed to make that all work, and if you just increase enforcement capacity — the people who are picking them up, the people who are getting them into detention, and so on — and you don’t increase oversight capacity, then people are going to die in detention.”
“We will not lower standards and we will not lower training” to fulfill the administration’s requests, DHS Secretary John Kelly has said. “We’re going to get 10,000 and 5,000 on board within the next couple of years.”
Expanding the program known as 287(g), which enlists state and local law enforcement to act as de facto immigration officials, adds yet another layer of civil rights concerns, Schlanger argued. “It provides a fairly minimal amount of training for those police officers and then they’re supposed to operate in this quite legally complex environment and know what the immigration answer to things is,” she said. “Try training a local cop on the trickiness of derivative citizenship.”
“We have no reason to expect that they will do a good job of that, and so we should expect to see a lot more mistakes,” Schlanger said, explaining that the potential for unchecked abuse is significant. “The oversight mechanisms that are supposed to keep ICE and CBP from engaging in profiling, those oversight mechanisms are very weak when you apply them to nonfederal actors.”
“When local folks are using federal authorities to do the arrest, you really have to worry that what they’re doing is going around picking up brown people,” Schlanger added.
The senior U.S. immigration official said many of the concerns expressed by the legal and advocacy community over the changing face of domestic enforcement are valid, but added that despite those concerns the administration’s efforts could very well deliver exactly what the president’s supporters have been waiting for: “hard numbers that the administration will point to as success.”
“I fear that it’s going to be a really effective, comprehensive strategy that will look good on the outside — deportations will go up, ‘danger aliens’ will be in detention, asylum claims will go down, illegal border crossings will go down,” the official said. “My fear is that the likely success in terms of the numbers will drown out the ethical considerations.”