Austin Bar: Update On Recent Immigration Enforcement Issues

In January, President Trump issued three executive orders relating to immigration entitled “Border Security and Immigration

Enforcement Improvements” (Jan. 25, 2017), “Enhancing Public Safety in the Interior of the United States” (Jan. 25, 2017), and “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017).

One month later, the Department of Homeland Security (DHS) issued two memos describing how those orders will be enforced: “Enforcement of the Immigration Laws to Serve the National Interest” (Feb. 20, 2017) and “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies” (Feb. 20, 2017). The travel ban ordered in “Protecting the Nation from Foreign Terrorist Entry into the United States” made the biggest splash in the media because of chaotic implementation at U.S. airports. Visa holders and Lawful Permanent Residents alike from the seven banned countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) were denied entry and detained, refugees were turned away or not permitted to enter, and attorneys and protestors flocked to the airports to lend assistance.

Though not as splashy, the two remaining orders are more sweeping and propose a sea change in the enforcement of immigration within the United States. The memos outline a plan to implement mass deportation by greatly expanding enforcement priorities to include essentially every undocumented person in the United States because they include individuals who have not been convicted of any crime but have committed the elements of a crime, which includes illegal entry. This is a departure from the priorities under the Obama administration, which prioritized felons and people with convictions for significant misdemeanors. The memos also seek to expand remote detention centers, mostly run by private, for-profit companies, call to hire more enforcement agents and make asylum protection more difficult to obtain.

The most severe change is the plan to begin the application of expedited removal to anyone apprehended in the interior of the U.S. who cannot prove to the satisfaction of an Immigration and Customs Enforcement (ICE) officer that he or she has been in the U.S. for longer than two years. Expedited Removal is a procedure that allows a DHS official to summarily remove a noncitizen without a hearing before an immigration judge. See 8 U.S.C. § 1225(b)(1). To date, it has only been implemented by regulation to recent border arrivals—people who entered the country less than 14 days before their apprehension or who are apprehended within 100 miles of the border. The Executive Orders and memos plan will now apply to any noncitizen who is apprehended in the interior of the U.S. An ICE officer can accomplish an expedited removal within 24 hours.

What this means is even the undocumented father of U.S. citizen kids, perhaps with a U.S. citizen wife, who is apprehended by ICE in Austin could be deported within a day— without due process, without the right to call his family, call his lawyer, or to see a judge—if he does not have evidence on him at the time of his arrest proving he has resided in the U.S. for longer than two years. Needless to say, it will become necessary for undocumented immigrants to keep proof on them, at all times, of their time in the U.S. for longer than two years if they hope for due process in their deportation proceedings.