Feds expand rules for illegal immigrants who can be deported

McClatchy Washington Bureau

WASHINGTON — Homeland Security Secretary John Kelly has issued new orders to agency heads that considerably expand the number of immigrants who can be detained and deported under executive orders President Donald Trump signed last month.

Under Kelly’s orders, which were contained in two memorandums distributed to agency heads Friday, hundreds of thousands more immigrants in the United States illegally will be subject to what’s known as expedited removal proceedings to quickly get them out of the country.

The order 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.

“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 said in the memorandums, copies of which were made available to McClatchy Saturday.

Both memorandums bear Kelly’s signature and indicate they were distributed to the heads of U.S. Customs and Border Protection, Immigration and Customs Enforcement and Citizenship and Immigration Services, among others. A Homeland Security spokeswoman declined to confirm the authenticity of the memos, saying that the agency does not confirm memos that have not yet been public. But she did not dispute their authenticity.

The memos implement two of Trump’s executive orders on enforcement of immigration laws inside the United States, but they go farther by wiping away several orders President Barack Obama issued to protect those in the U.S. 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 headed the Justice Department’s Office of Immigration Litigation under Obama.

Fresco predicted quick backlash from immigrant groups in the courts and that a large percentage of Kelly’s orders will be blocked by courts shortly after they are implemented.

The first memorandum specifically exempts from enforcement “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 their status remains in question in a second, more detailed memorandum that dismisses the idea of any protected classes of immigrants.

That memo also expands the definition of who is considered a criminal to include not only those who have been convicted of a crime, but also those who have been charged or even thought to have “committed acts that constitute a chargeable criminal offense.”

The memo significantly broadens border patrol and ICE’s ability to deport detained individuals immediately. Currently, expedited removal is permitted only for people who have been in the country 14 days or less. Under Kelly’s orders, that period would become two years.

The impact of the change in the definition of unaccompanied children is likely to be wide. In his memos, Kelly says 60 percent those who qualified under the Obama administration as unaccompanied minors were eventually reunited with a parent living in the United States illegally. Kelly said once they are reunited with their parents, they may no longer receive such protection.

In justifying going after the parents of such children, Kelly argues that they risked their children’s lives by putting them in the hands of human smugglers. Kelly noted that many such children fall victim to robbery, extortion, kidnapping and sexual assault along the dangerous journey.

The memos also implement other aspects of Trump’s executive orders, including the hiring of an additional 15,000 enforcement agents, expansion of detention facilities and the construction of a wall along the U.S.-Mexico border.

The memos also direct agency heads to begin immediately recruiting local police officers and sheriff 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 a month over 2015, significantly straining federal resources. More than 46,000 immigrants were apprehended in October and more than 47,000 were caught 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 pending in courts — a 200 percent increase from 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.”