Last Updated on February 22, 2017
New guidelines from the U.S. Department of Homeland Security (DHS) call for the mass arrest and detention of undocumented immigrants regardless of whether they have criminal convictions.
The document, issued by DHS Secretary John Kelly on February 17, 2017 and which calls for the hiring of thousands of enforcement personnel, outlines how the federal government plans to tackle illegal immigrants in the United States.
It follows in the wake of President Donald Trump’s Executive Order banning immigration from seven Muslim-majority countries and suspending the U.S. refugee program.
Trump signed the original order on January 25, 2017 – initially creating havoc because no-one knew exactly who it covered and who it did not.
The deportation guidelines replace more narrow policies focusing on immigrants who have been convicted of serious crimes, are considered threats to national security or are recent border crossers.
Under the Obama administration policies, immigrants whose only violation was being in the country illegally were generally left alone. Those immigrants fall into two categories: those who crossed the border illegally and those who overstayed their visas.
This version of the DHS guidance comes 27 days since inauguration and only 8 days since the Ninth Circuit Appeals Court in San Francisco rejected a crucial government challenge. The original order remains suspended by the U.S. courts after government lawyers failed to overturn a restraining order put in place by a U.S. District Court judge on February 3rd.
A revised executive order is expected to be signed today, with the assumption being the DHS guidelines would then be applicable and more able to withstand future court challenges that will likely follow.
Here are some of the key points from the DHS document issued February 17, 2017:
Under the guidelines, illegals who cross the border overland from the U.S. or Canada will be immediately sent back to either country, where they will be held until they can be formally removed.
The document suggests these illegals should appear in court by video from Mexico or Canada to speed up the removal procedure. There is little further explanation of the intended procedure.
This would violate U.S. and international law requiring arrivals to be given a chance to request asylum and protection, as is the case in Canada, which has see a surge in illegal arrivals from the U.S. of late.
The guidelines also give no indication of how the U.S. will detain these illegal immigrants in Mexico and Canada, or any notion that either country has agreed to the policy.
Wall building and security Guidelines call for construction to begin on the border wall immediately, and at the same time an evaluation to take place on how available resources could improve border security.It requires all available funds to be used for the wall, as well as special funding requests above and beyond the current U.S. budget.Estimates suggest the wall will cost $21 million and be completed by 2020. Trump has promised to make Mexico pay, see point 12) below.
Beefing up security at U.S.-Mexico border
The guidelines call for significant resources to be directed at expanding all detention facilities on the border, including building temporary units for use by both the U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).
Furthermore, credible fear and asylum-claim decisions will be made at detention centres, with the guidelines calling for staffing levels to increase accordingly.
Meeting such staffing levels has already proved a challenge, as explained in sections 5) and 8).
The document also make the unsubstantiated claim that those who are not detained ahead of a hearing “are highly likely to abscond and fail to attend.”
Priority prosecution for immigrant border crimes
The guidelines instruct specific action against organized crime, including people smuggling, by using cross-agency task forces to crackdown in areas including people trafficking, drug trafficking and visa fraud.
Again, there is a requirement for staffing levels to increase to allow this to happen.
Huge increase in detention of illegal immigrants
The guidelines instruct DHS officers to detain almost every immigrant it arrests until they:
- Can be removed from the country, OR
- Must be released lawfully, OR
- Can acquire a U.S. visa, green card or citizenship, OR
- Are deemed to credibly fear persecution, OR
- Are awarded parole.
Due to lack of staff (including judges) available at borders, these arrests will initially be prioritized based on threat to society and flight risk. Once staffing levels are adequate, detention increases will follow.
While the guidelines require a dramatic increase in detention, they do not cover where these immigrants will be housed.
The U.S. ICE currently has 34,000 spaces in detention centres and still manages to hold up to 50,000 people per day, above capacity. Conservative estimates suggest the new guidelines could see 200,000 arrests per day.
Some $2 billion in taxpayer money is already spent on detention. A required six-fold increase in capacity is dramatically outside that budget.
The guidance suggests mass hiring of border officers and judges would be required, despite another Trump executive order freezing government hiring.
Immigration judges are also in short supply, with the U.S. Department of Justice already failing to meet hiring targets.
Aside from practical issues, the guidance raises humanitarian problems with no exemption for children, the elderly, the disabled, or pregnant women.
Strict application of expedited removal
Expedited removal gives DHS the power to remove anyone without legal status not continuously present for two years no matter where they are in the U.S. The guidelines suggest this power will be exercised to its full capacity.
Under the previous administration, the policy was used for illegal immigrants found inside 160km of the border and inside 14 days since they entered the U.S. It also covered those arriving by sea and not through a designated entry port.
The broadening of this scope could mean illegal immigrants who have been in the U.S. for significant periods of their lives could suddenly find themselves subject to expedited removal.
It means anyone without the necessary documents when they are arrested could find themselves removed from the U.S.
This can happen within 24 hours and without hearing or legal representation.
What constitutes ‘credible fear’?
While the document does not change what constitutes ‘credible fear’ under U.S. law, it does suggest the current definition will be enforced in a more restricted way.
‘Credible fear’ determines whether an asylum seeker faces persecution if they are returned to their home country.
Thousands more border patrol staff
The guidelines require the hiring of 5,000 new border patrol agents (not including asylum officers and immigration judges). It also calls for 500 more air and marine patrol staff.
The agency responsible, the U.S. CBP, currently has a staffing target of 21,370 officers, which it cannot meet.
Taking aim at trafficking of children
The DHS guidelines call for strict enforcement of laws against smugglers who aid in trafficking children into the U.S.
It says undocumented family members already in the U.S. who hire smugglers are breaking U.S. law.
However, there is a lack of language in the guidance accounting for what drives families to subject their children to people trafficking, such as conflict in their home countries.
Local-level law enforcement to enforce federal immigration law
The guidelines instruct both the ICE and CBP to form agreements with state and local departments to enforce federal immigration law, particularly near the Mexican border.
Evidence shows using local police to enforce federal law causes trust issues between officers and immigrants.
There is also concern the broad terminology used for state law enforcement could mean the national guard being deployed. Further evidence of Trump’s intent to use the national guard has been leaked in the U.S. media.
What constitutes an unaccompanied minor?
U.S. authorities are instructed to produce instructions and offer training on how to ‘process’ unaccompanied minors when they arrive at the border.
Adjudication of asylum claims from minors and how to safely repatriate them are also to be included in the instructions and training.
The DHS document wants unaccompanied minors to be assessed to ensure they continue to meet the requirements for the special status as they are processed.
The overriding fear is that many children who arrive at the border who would previously have been protected under U.S. law will now be removed from the country after a short hearing. This comes down to a restriction of what constitutes an unaccompanied child.
Children could also be removed without ever coming before a judge.
Sources of Mexico aid
Guidelines call on the heads of every U.S. government executive department to detail direct and indirect aid provided to the Mexican government, as Trump looks for ways to pay for his border wall.
Limiting use of parole
Language in the guidelines suggests the use of parole for immigration detainees will be significantly limited.
It criticizes the current implementation for using ‘pre-designated categories’, designed to protect vulnerable people, but which it says have resulted in a ‘border security crisis’.
It calls for parole officers to be given new training on how to interpret the guidelines, and that future decisions should be on a case-by-case basis.
Making border security statistics available
Guidelines state that statistics related to the border security crackdown should be publicly available in an easy-to-understand format.
The latest policies confirm Trump’s objective to prove he is keeping promises made during the U.S. election campaign.