This week, the Department of Homeland Security (DHS) issued new rules for how undocumented immigrants will be prioritized for arrest, detention and deportation. The reality is there are not enough immigration and border patrol agents, detention centers and immigration Judges. Because of this, former President Obama created policy on who was a priority for deportation. The guidelines under the Obama administration emphasized the following people:
- Those with final orders of deportation
- Those who committed illegal re-entry. That is previously deported and caught coming back.
- Those with felony convictions, including DUI and domestic violence.
The new DHS guidelines change who is a priority for deportation to focus on the following people:
- Those convicted of any crime.
- Those only charged with a crime—that do not have a conviction.
- Those who have committed acts that may be a crime.
- Anyone who committed fraud to obtain public benefits.
- Anyone who “poses a risk to the public”. (This would more than likely be done on a case by case basis and up to the discretion of the ICE agent.)
The current administration has also stated there will be no more “catch and release”. This means that people will be held in Federal detention on immigration violations until their case is heard. There will be some exceptions for certain green card holders and asylees. Under the Obama administration more people had chances to be released on bond and were often placed on electronic monitoring until their court hearing.
The Trump administration has also expanded the program of expedited removal.
Under the Obama Administration guidelines:
An immigrant detained within 100 miles of border without permission to be in the US and having been in US less than 14 days, was eligible for immediate deportation, through expedited removal—with no hearing before a judge.
Under the Trump Administration’s new guidelines:
An immigrant detained anywhere in the US, without permission to be in the US, who cannot prove they’ve been in the US for two years, are eligible for expedited removal—again without the due process of a hearing before a judge.
Finally, another key highlight focuses on Unaccompanied Alien Minors (UAMs). A UAM per federal law is;
- Under age 18,
- lacks legal status,
- has no parent or guardian in US, or
- has no parent or guardian in US who can care for them
Many times UAMs turn themselves in at the border and ask to be reunited with a parent already living in the US. Under the old guidelines, UAMs were allowed to live with their parent in the US while they went through the deportation process. This ultimately allowed UAMs the opportunity to explain to a Judge why they should be allowed to stay in the country.
Under the new guidelines, if a detained minor has a parent in the US then they are not considered a UAM. This means unless the youth can show a “credible fear” argument for asylum when detained s/he may face expedited removal. It is still unclear how this will work, but the implications are very troubling.
Additionally, under the new guidelines, ICE is instructed to use information gained from a detained UAM to pursue their parents, if they are in the US without permission, particularly if they paid someone to bring their child to the US.
So what does this all mean?
In short, the new guidelines are a troubling shift in policy which significantly increase the number of immigrants who could be targeted as a priority for deportation, while at the same time decreasing the access immigrants have to legal representation and due process. These changes could be especially harmful for those seeking asylum from dangerous situations in their home countries, and for UAMs who will likely face difficult, confusing questions, not only without a parent or guardian present, but also without legal representation.
Each of these implications alone would pose a significant threat to the rights immigrants—regardless of their legal status—however, taken together, along with the many other recent sweeping changes to immigration policy, provide a climate for a significant increase in unjust and unlawful detentions and deportations.