The Trump administration, via the Department of Homeland Security, has published a memorandum detailing new guidance on immigration enforcement. Andy McCarthy offers an analysis of the guidance upon which I cannot improve. Here is Andy’s short version: “Henceforth, the United States shall be governed by the laws of the United States.”
The guidance eschews the idea of trying to round-up and deport all illegal immigrants. As a candidate, Trump himself ultimately eschewed this crazy idea (which he initially proposed). Instead, the guidance reinstates the idea of serious enforcement of our immigration laws.
This stands in marked contrast to Obama administration policy. As Andy explains, Obama rejected serious enforcement under guise of “prioritizing” it:
In 2014, under the guise of setting out “immigration enforcement priorities,” Obama’s Department of Homeland Security established a three-tier system for deportation. This was quite advisedly done under the rubric of “prosecutorial discretion.”
Federal agents were instructed to apply prosecutorial discretion as early in the evaluation process as possible, mindful of how sparse were resources to arrest, detain, and deport removable aliens. The message was clear: If an alien does not fit into the top tier, do not even bother to stop and question him, much less to arrest and commence deportation proceedings.
While Obama’s two lower tiers were referred to, in an Orwellian way, as “priorities” (i.e., enforcement “Priority 2” and “Priority 3”), the reality was more like immunity.
True prioritization makes great sense. We should concentrate enforcement resources on illegal immigrants who threaten national security, border security, and public safety.
However, this doesn’t mean that everyone else who violates our immigration law should get a pass. Yet, that’s what, in practice, Obama gave them.
This won’t be the case under the Trump administration’s guidance. DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” Instead, agents are directed to “take enforcement action in accordance with applicable law.”
In virtually all instances, illegal aliens are removable under applicable law.
Although resources still will be concentrated on dangerous illegal immigrants, any illegal immigrant encountered in the course of normal law-enforcement operations will be subject to deportation. This, as I understand it, was once standard practice. Any other practice makes a mockery out of the law.
There are two more important changes. First, though prioritization will continue, the view of which illegal immigrants pose danger will be different.
Agents have been directed to prioritize enforcement against aliens who have been convicted of any criminal offense — not merely any serious felony. In fact, priorities now include illegal aliens who have merely been charged with a criminal offense, as well as those DHS can show “have committed acts which constitute a chargeable criminal offense” — even if there have not been formal charges filed, let alone a conviction.
Prioritizing those who have merely been charged with a crime will be controversial. However, these immigrants, having been encountered in the course of normal law-enforcement operations, presumably would be subject to deportation anyway under the new policy.
It makes sense to deport immigrants who, having already broken the immigration law, commit crimes in the U.S. The only defensible reason I can discern for not aggressively enforcing our immigration laws against all illegals who commit crimes (beyond breaking immigration law) would be a scarcity of resources.
This leads to the second important change: Ten thousand additional agents for ICE (the Immigration and Customs Enforcement agency, the DHS component principally responsible for enforcing the immigration laws) and 5,000 additional border-patrol agents (the DHS component responsible for preventing illegal entrance at our borders and ports of entry). With this boost, the rationale for effectively exempting any category of illegal immigrant from enforcement disappears.
Andy’s final observation is that the guidance excludes the beneficiaries President Obama’s controversial executive orders on DACA and DAPA — aliens who are illegal through no fault of their own but because they were brought here illegally as children and the illegal-immigrant parents of U.S. citizens and permanent residents. Make of this what you will.
Andy suggests President Trump may be betting that if he shows aggressiveness and results in overall immigration enforcement, his supporters will forgive (and his critics cheer) amnesty for “DREAMers” and sympathetic aliens who are close relatives of Americans. We’ll see.