President Donald Trump signed three executive orders on immigration during his first week in office. The orders focused on border security, interior enforcement, and “extreme vetting” and temporary entry bans for refugees and nationals from certain Muslim-majority countries. On February 20, the Department of Homeland Security (DHS) released supplemental memos with further guidance on implementing the orders. The provisions of the order and memo on interior enforcement represent a stark shift in policy and will have an immediate and significant impact on the immigration enforcement system.
The president, through Immigration and Customs Enforcement (ICE), has broad authority and discretion over immigration enforcement efforts to remove individuals from within the country. However, because of the large unauthorized immigrant population and finite resources, it is necessary for the executive to set priorities among those eligible for removal. Trump’s interior enforcement order contains provisions that overturn and loosen more restrictive enforcement priorities created during President Obama’s time in office. The Obama administration created a list of detailed enforcement priorities with strict hierarchy. By policy, unauthorized immigrants who did not fall within the narrow priorities were essentially protected from any enforcement. On the other hand, while Trump’s removal policy seems geared to focus on “criminal” aliens, it also vaguely references broad sections of immigration law and categories of non-citizens that essentially make all unauthorized immigrants “priorities” for removal at any time. The Trump policy is governed by the overarching principle that no group of immigrants will be exempted or excluded from enforcement through prosecutorial discretion.
Obama’s Enforcement Priorities
Obama’s policy on removals was set in 2014 when DHS implemented enforcement priorities as part of the president’s immigration executive actions. Those enforcement policies built on the deportation priority memos issued during his first term (the so-called “Morton memos”), and focused on national security threats, immigrants convicted of serious crimes, and recent border crossers. The memo also laid out factors that should be considered when exercising prosecutorial discretion to deprioritize or not take action against otherwise removable persons, including strong family or community ties and length of time in the country. According to estimates by the Migration Policy Institute, the 2014 priories would have prioritized about 13 percent of the estimated 11.3 million unauthorized immigrants in the country (even less than the 27 percent that were prioritized under the previous Morton memos).
The 2014 priorities had a significant impact on both the number and criminal make up of ICE removals form the interior of the country. The priorities went into effect in FY2015, but FY2016 was the first year during which the priorities were fully in force. In FY2016, 98 percent of all interior removals met one of the priorities above, and 92 percent (or about 60,000 out of 65,000 total interior removals) were convicted of a crime. Strict adherence to the priorities by ICE agents and the use of prosecutorial discretion significantly reduced overall interior removals, from 224,000 in FY2011 to 65,000 in FY2016 (Figure 2).
Trump’s Enforcement Priorities
Trump’s order and the subsequent DHS memo rescind all previous policy related to the priorities for removal. The new priorities target a much broader set of unauthorized persons for removal and empowers individual enforcement officers with broad discretionary authority to apprehend and detain any immigrant believed to be in violation of immigration law and start removal proceedings for any immigrant who is subject to removal under any provision of the Immigration and Nationality Act (INA)–this essentially includes any and all unauthorized immigrants in the country.
The executive order calls on DHS to prioritize individuals for removal based on criminal, security, and fraud grounds that make foreign nationals inadmissible or deportable under the INA. The order also makes a somewhat vague reference to persons described in section 235(b) and (c) of the INA, which addresses the inspection and removal of all persons in the country who have not been lawfully admitted or paroled and are subject to expedited removal. In addition, the EO specifically targets unauthorized immigrants who:
a) have been convicted of any criminal offense
b) have been charged with any criminal offense
c) have committed acts that constitute a chargeable criminal offense
d) have willfully committed fraud in any official matter before a government agency
e) have abused public benefits programs
f) have final orders of removal
g) are otherwise considered a public safety or national security risk by an immigration officer
Unlike the priorities put in place in 2014, there is no inherent hierarchy in the list of priorities listed in Trump’s order—all are listed as equally important for removal. Additionally, “criminal offenses” is not defined (felonies vs misdemeanors, etc.), and could include minor misdemeanors like traffic offenses or crimes related to immigration status like illegal entry or reentry, that were specifically deprioritized by the Obama policy. The order also moves away from a focus on convictions to people “charged” or believed to have “committed acts that constitute a chargeable” offense—broad categories that presume guilt not proven in court. Combined with the extension of so-called 287(g) agreements that would deputize state and local law enforcement as immigration agents, these changes have also raised concerns among advocates that some jurisdictions will make individuals priorities for deportation by first arresting and charging them with a crime, regardless of the merits of the case.
The memos also give much wider latitude to ICE agents with little guidance or oversight. Although the 2014 Obama policy also allowed ICE agents to target individuals they considered risks, it required a supervisory review by a Field Office Director. Secondly, while the use of prosecutorial discretion in the Obama policy focused on when removable persons could get a reprieve, prosecutorial discretion in the context of Trump’s policy is strictly framed as a disclaimer that the listed priorities do not constrain ICE agents’ ability to otherwise apprehend, detain, or remove any unauthorized immigrant. Lastly, the category for immigrants with a previous removal order does not list a date cut off, which will mean that long-time unauthorized residents will be prioritized regardless of when they received their removal order.
The impact of this bottom-up system of prioritization is still unclear, but it will likely mean that who is in line for removal will be determined only by whom ICE can practically and easily apprehend (“low hanging fruit”) and the discretion of individual ICE officers. It is also likely that adherence to less strict priories will lead to an increase in the number of deportations in the years ahead, especially if the number of enforcement officers increased, as was called for by other provisions in the order. The implementation memo left room for agencies to determine whether further guidance is necessary to prioritize enforcement activities, but for now, the language of both the order and memo are an explicit warning that all unauthorized immigrants are at risk of deportation at any time.