WASHINGTON – Department of Homeland Security Secretary John Kelly has drafted new orders to agency heads that would considerably expand the number of immigrants who can be detained and deported under new executive orders President Donald Trump signed last month.
Under the proposed orders, which were contained in two memorandums written for distribution to agency heads and dated Friday, hundreds of thousands more immigrants in the United States illegally would be subject to what’s known as expedited removal proceedings to quickly get them out of the country.
But a senior White House official said the memos were not yet final, that White House lawyers had objected to some of their provisions, and that while the memos were DHS’s “final cut” at implementing Trump’s orders, they had not yet received White House approval.
“The White House has the final say,” said the official, who declined to be identified by name.
The draft orders also would affect thousands of children who arrived in the United States as “unaccompanied minors” and were subsequently reunited with a parent living in the country illegally. Those children would no longer be protected against deportation, and their parents would be subject to criminal prosecution if they had paid human traffickers to bring their children across the border – a common scenario now.
One of the memos said 155,000 unaccompanied children have been detained in the past three years, and that 60 percent of them were later reunited with a parent inside the United States.
“The surge of illegal immigration at the southern border has overwhelmed federal agencies and resources and has created a significant national security vulnerability to the United States,” Kelly wrote in the memorandums, copies of which were made available Saturday to McClatchy.
Both memorandums bear Kelly’s signature and indicate they were to be distributed to the heads of U.S. Customs and Border Protection, Immigration and Customs Enforcement, and Citizenship and Immigration Services, among others.
The White House official did not specify which parts of the memos had been questioned by White House lawyers.
The memos were intended to implement two of Trump’s executive orders on enforcement of immigration laws inside the United States, but would go further by wiping away several orders President Barack Obama issued to protect those in the United States who had not committed criminal acts beyond entering the country without permission.
“These memorandums represent a significant attempt to expand the enforcement authority of the administration in areas that have been heavily litigated,” said Leon Fresco, who led the U.S. Department of Justice’s Office of Immigration Litigation under Obama.
Fresco predicted quick legal challenges from immigrant groups if the memos were implemented and foresaw a large percentage of Kelly’s orders being enjoined by the courts.
The first memorandum specifically would exempt from enforcement so-called “dreamers,” the young immigrants who currently are protected under Obama’s Deferred Action for Childhood Arrivals program intended to protect people who were brought into the country illegally as children by their undocumented parents. But a later passage in the memo dismisses the idea of any protected classes of immigrants.
That memo also would expand the definition of who is considered a criminal to include not only those who have been convicted of a crime but those who have been charged or even thought to have “committed acts which constitute a chargeable criminal offense.”
The memo would significantly broaden border patrol and ICE’s ability to deport detained individuals immediately. Currently, expedited removal is permitted only for people who’ve been in the country 14 days or less. Under Kelly’s orders, that period would become two years.
In justifying going after the parents of children who arrived as unaccompanied minors and were later reunited with a parent, Kelly argued that the parents risked their children’s lives by putting them in the hands of human smugglers. Tragically, Kelly said, many of these children fall victim to robbery, extortion, kidnapping and sexual assault along the dangerous journey.
“Accordingly, the Director of ICE and the Commissioner of CBP shall ensure the proper enforcement of our immigration laws against those who – directly or indirectly – facilitate the smuggling or trafficking of alien children into the United States,” the memo said.
The memos also would implement other aspects of Trump’s executive orders, including the hiring of an additional 10,000 ICE agents, expansion of detention facilities and the construction of a massive wall along the U.S.-Mexico border.
The memos also direct agency heads to begin immediately recruiting local police officers and sheriff’s deputies to act as immigration agents, a program the Obama administration began scaling back in 2012.
In the memos, Kelly says monthly apprehensions have increased by 15,000 per month over 2015, significantly straining federal resources. More than 46,000 immigrants were apprehended in October and more than 47,000 were apprehended in November along the southern border, the memo says. In comparison, during those same months 32,000 and 33,000, respectively, were apprehended in 2015.
The court system has also been stressed. Kelly said 534,000 immigration cases are now pending in courts – a 200 percent increase from the nearly 168,000 cases pending at the end of fiscal 2004.
“The average removal case for an alien who is not detained has been pending for more than two years before an immigration judge. In some immigration courts, aliens who are not detained will not have their cases heard by an immigration judge for as long as five years,” Kelly said. “This unacceptable delay affords removable aliens with no plausible claim for relief to remain unlawfully in the United States for many years.”
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