Department of Homeland Security memos leaked over the weekend outline extreme immigration enforcement guidelines that begin to fill in the blanks of President Donald Trump's vague January executive orders calling for a border wall and greased-up deportation machine.
In the memos, Homeland Security Secretary John Kelly calls for the prosecution of parents found to have aided a child's border crossing, as well as expedited removal of all undocumented immigrants who have been in the country for less than two years—a procedure currently only applicable in cases where a person has been in the United States for less than two weeks and is within 100 miles of the US border. The memos also reinstate a program called Secure Communities, which emboldens willing police departments to perform ICE duties, from investigation to arrest and detention. Kelly refers to the police-collaboration program—a President George W. Bush legacy that dwindled in recent years and would not apply under New York City's sanctuary guidelines—as a "highly successful force multiplier."
"Due process, human decency, and common sense are treated as inconvenient obstacles on the path to mass deportation" in these memos, said American Civil Liberties Union senior legislative counsel Joanne Lin in a statement. "The Trump administration is intent on inflicting cruelty on millions of immigrant families across the country."
NYCLU attorney Jordan Wells elaborated to Gothamist, describing how expedited removal would leave the fate of many non-citizens in the hands of ICE and Border Patrol officers, edging out court intervention. "Eliminating neutral arbiters from the equation goes a long way toward eliminating any semblance of fair procedures," Wells said.
The draft memos are also written to supersede all ICE priorities instated under President Barack Obama, with the exception of Deferred Action for Childhood Arrivals (DACA). Trump pledged on the campaign trail to immediately repeal the policy, which has given temporary work permits to hundreds of thousands of immigrants who entered the US illegally as children. This month, Trump said he would "show great heart" in deciding DACA's fate.
Discretionary policies instated under Obama, which encouraged ICE officials to prioritize individuals on terrorism watch lists over immigrants with misdemeanor convictions and those whose only crime is entering the country illegally, do not factor into Kelly's drafts. Instead, Kelly urges ICE to arrest any "alien whom an immigration officer has probable cause to believe is in violation of immigration laws." Last week, immigration defense attorneys in NYC told Gothamist that they were already experiencing this hardline attitude in court.
The legal term "alien" includes New York's estimated 500,000 undocumented residents, as well as anyone with a green card or temporary visa.
“These memos confirm what we’ve long feared—that General Kelly is an eager accomplice to President Trump’s anti-immigrant crusade," said Make The Road New York co-director Javier Valdés in a statement.
The draft memos do not call on the National Guard to seek out and deport undocumented immigrants across 11 states—a plan outlined broadly in a draft memo that the Associated Press acquired and reported last week. Unlike the leaked National Guard memo Friday, these latest memos bear Kelly's signature.
DHS spokeswoman Gillian Christiansen told Gothamist that the agency does "not comment on documents that are yet to be released publicly," but confirmed that official memos will likely be released soon.
An anonymous White House official told McClatchy that both documents were "not yet final," adding that the drafts had not yet received White House approval, and that "the White House has the final say."
Like the executive orders before them, these memos raise questions of funding. For example, the Washington Post points out that the border memo directs the federal government to "seek all available funding" for the border wall—an estimated $20 billion-plus that would have to be allocated by Congress.
Camille Mackler, director of legal initiatives at the New York Immigration Coalition, told Gothamist on Sunday that the prospect of expedited removal is not entirely surprising, as Trump's transition team dropped hints after November 8th. A recent American Immigration Council report outlines the history of expedited removal, which has been on the rise in recent years. In FY 2013, 193,000 removals, or 44 percent of the total, were executed this way. Under Trump, the organization predicts, thousands more could be quickly deported, without due process.
"Something that really struck me about these memos was the prosecution of the parents," Mackler added. "We've never seen anything like that before."
Another surprise was the proposal to send all Mexican immigrants apprehended at the border back to Mexico to await deportation hearings. (According to Kelly, doing so would save resources at detention camps.) "You are allowed an attorney in immigration court," Mackler said. "But how does that happen if they are in Mexico?"
Broadly, Mackler added, immigration advocates are starting to adjust to waves and waves of surprises.
"We're getting used to this sort of chaotic rollout from the White House on anything," she said. "There's a leaked memo, and they say they never wrote it. And then you see another memo come out.... What we need to do, is we need to figure out—and we're getting there—how to pivot and respond very, very fast."