On February 20, 2017, the US Department of Homeland Security issued two memorandums to implement President Donald Trump’s executive orders on immigration enforcement, at the border and in the interior of the United States. These memos make striking and sweeping changes to US immigration policy to facilitate the deportation of millions of people under procedures that have already been shown to violate the basic rights of, or otherwise cause serious harm to, long-term residents, their US-citizen family members, and asylum seekers fleeing persecution and violence. The memos also make clear that immigration authorities will use the full extent of their powers under existing problematic laws in place since 1996 to deport people. They revoke Obama administration guidance that limited the application of these 1996 laws to certain categories of noncitizens. Drawing on decades of research into the US immigration system and the operation of the 1996 laws, Human Rights Watch predicts that these policies will have a dire impact on human rights.
The full memorandums, “Implementing the President’s Border Security and Immigration Enforcement Policies” and “Enforcement of the Immigration Laws to Serve the National Interest,” can be found here.
The sweeping changes in policy outlined in the two memos and the potential impact on human rights include:
- Making nearly all undocumented immigrants targets under new priorities for enforcement;
- Increasing local law enforcement involvement in federal immigration enforcement, which has been shown to increase distrust of police in immigrant communities;
- Increasing detention of people apprehended at the border, in a detention system that is notorious for its punitive and often inhumane conditions, including the subpar medical care that has led to unnecessary deaths in custody;
- Increasing federal criminal prosecutions for immigration-related offenses, such as crossing the border illegally, which is likely to result in criminal convictions of long-term residents and parents of US citizen children and asylum seekers;
- Potentially expanding fast-track deportation procedures that have demonstrably harmed asylum seekers and others’ ability to get fair hearings;
- Greatly expanding the number of immigration agents although existing procedures for holding immigration agents accountable for misconduct have clearly been inadequate;
- Removing longstanding privacy protections for anyone in US government databases who is not a US citizen or lawful permanent resident.
The stated commitment to enforce existing 1996 laws to their full extent means that large numbers of people with old or very minor criminal histories, including many who are lawful permanent residents (green card holders) and/or have family and community ties to the US, will be detained and deported, most likely in fast-track procedures.
These changes and enforcement priorities will have a devastating impact on the rights of millions of immigrants, their families, and communities.
Under international law, governments have the power to regulate migration and police their borders, but they must do so in a way that does not violate fundamental human rights. A governmental decision to deprive someone of connections to the place they consider home raises serious human rights concerns, requiring at a minimum careful consideration of any decision to deport them, with all relevant impact and potential rights violations weighed by an independent decision maker.
Unfortunately, the US routinely fails to make that kind of assessment. Among the basic rights at stake in numerous cases are the right to family unity, the right to seek redress for workplace violations and crime, the right not to be returned to a country where the person would face persecution or torture, and the right to be treated in a non-punitive, humane manner in detention.
The memos, like Trump’s executive orders, are premised on the false and dangerous conflation of illegal immigration and crime. The new enforcement priorities potentially make nearly all 11 million undocumented immigrants “priority” targets for deportation – setting the stage for what could well be a nationwide dragnet that would harm millions of people.
The interior enforcement memo explicitly states, “The Department will no longer exempt classes or categories of removable aliens from potential enforcement.” The memorandum pointedly excludes people covered by the prior administration’s memoranda on Deferred Action for Childhood Arrivals (DACA). At the same time, the priorities it lists are incredibly broad and could encompass people who currently have DACA status.
The priorities listed are noncitizens who:
- Have been convicted of any criminal offense;
- Have been charged with any criminal offense that has not been resolved;
- Have committed acts that constitute a chargeable criminal offense;
- Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
- Have abused any program related to receipt of public benefits;
- Are subject to a final order of removal but have not departed the US;
- In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
“Any criminal offense that has not been resolved” is at odds with the presumption of innocence. “Acts which constitute a chargeable criminal offense” is so broad that it would encompass anyone who has ever jaywalked or driven without a license. Combined with the border security memo’s call for increased criminal prosecutions for immigration offenses, this indicates that anyone who ever entered the US without a visa, about half of all undocumented immigrants in the US, would be considered a priority for deportation (most of the others overstayed visas, which is not a crime but a civil offense). Anyone who has “engaged in fraud or willful misrepresentation” could include anyone who ever claimed to have work authorization to get a job – which would include nearly everyone without legal status who has worked in the US. The catch-all, anyone who “in the judgment of an immigration officer, otherwise pose[s] a risk to public safety or national security,” without any additional guidance as to what that might mean, makes clear these priorities aren’t really priorities at all, but are intended to encompass any one of the millions of people who are technically removeable.
Despite the memo’s pointed reference that DACA is not being rescinded, a recent immigration arrest of a DACA grantee indicates how they, like other noncitizens, face increased risk of deportation under the new priorities. Daniel Ramirez Medina, who had been granted DACA status, was arrested when immigration agents came to his home looking for his father. Immigration and Customs Enforcement (ICE) now claims he has admitted gang affiliation, an allegation that requires no proof of conviction, and that he, through his attorney, has strenuously denied. One of the requirements for DACA status is not having a conviction for a felony or certain misdemeanors. But under the new priorities, which do not require a criminal record for deportation, other DACA recipients may find that they are not protected from deportation under the much broader enforcement priorities.
The memos also allow for expansion of certain types of removal procedures that would help speed up deportations, at the expense of basic due process rights.
“Any criminal offense” includes people who are guilty only of extremely minor offenses, or whose only criminal offense is entering the country illegally. It includes people who long ago served their time and have changed their lives. Many noncitizens with these convictions know no other country because they came legally or illegally as children. They are part of US communities, churches, work places, and families. They are military veterans, blue-collar workers, and owners of businesses and homes. In many cases, the 1996 laws already harshly mandate their detention and deportation without considering these factors.
Human Rights Watch’s experience documenting the impact of “criminal alien” deportations over the last decade is instructive. Even under the Obama administration, which claimed to focus on “criminals, gang bangers, [and] people who are hurting the community,” the government deported hundreds of thousands of people for minor crimes, or people who had no convictions but were swept up in immigration enforcement anyway, and hundreds of thousands of people whose most serious crime was an immigration violation.
This was not a new trend. A Human Rights Watch analysis of US government data reveals that 72 percent of noncitizens deported for criminal convictions from 1997 to 2007 had nonviolent offenses. Those deportations affected more than 1 million family members. Human Rights Watch analyses of government data in 2009 and 2013 also showed that hundreds of thousands of people with minor nonviolent criminal convictions and strong US family ties were swept up into detention and deportation. Even as federal and state policymakers advocated less-punitive sentences for drug offenses, deportations of people whose most serious conviction was for drug possession spiked 43 percent from 2007 to 2012. People labeled “drug traffickers” included people like Marsha Austin, a grandmother from Jamaica and a permanent resident living in New York. The US government tried to deport her in 2010 as an aggravated felon for a 1995 conviction for buying a tiny amount of crack cocaine for an undercover police officer, for which she received $5. Her recovery from drug dependence was so exemplary her counselor testified for her at her immigration hearing, the first time she had ever done so.
Easily. The border security memo calls for increased criminal prosecutions of people for offenses committed at the border. That includes illegal entry and re-entry, which are already the most commonly prosecuted federal crimes in the US. Along with other immigration offenses, like visa fraud and smuggling, they now make up 50 percent of all federal criminal cases. Prosecutions for illegal entry and re-entry, both nonviolent offenses, are up 182 percent and 87 percent respectively compared with 10 years ago. Whereas criminal prosecution used to be reserved for those with the most serious criminal histories, in 2015, only one out of five people sentenced under the Sentencing Guideline for illegal re-entry received the sentence increase reserved for those with the most serious criminal histories.
According to federal judges, prosecutors, and defense attorneys, many of those prosecuted for illegal re-entry are long-term residents, including former lawful permanent residents, who are desperate to return or remain with their US citizen family members, including minor children. Federal district Judge Robert Brack, who has sentenced over 11,000 people for illegal re-entry, told Human Rights Watch, “For 10 years now, I’ve been presiding over a process that destroys families every day and several times each day.” Human Rights Watch analysis of government data from 2011 and 2012 found that parents of US citizen children are much more likely than non-parents to be deported at the border multiple times and to be prosecuted for illegal entry and re-entry.
Others who are prosecuted for illegal entry and re-entry include asylum seekers, like “Brenda R,” who was deported after a Border Patrol agent ignored her claims of fear of persecution from drug cartels, and then criminally prosecuted after she tried to enter the US again. A report by the DHS Office of Inspector General confirmed that such cases are common. Prosecutions of asylum seekers for improper entry violate US obligations under international refugee law.
The effects reach well beyond the people who are deported. US citizen spouses and children often struggle to make ends meet when breadwinners are detained and deported; children grappling with a parent’s deportation struggle socially and in school. New York City created a “public defender” program for immigrants in deportation proceedings in part because of the tremendous social and economic costs to the city and the state from deportations that separate families. The costs include foster care, lost tax revenues from deported immigrants, and losses for employers who must replace deported employees.
New research suggests that at the height of the great recession, counties in which local police signed agreements with federal officials to enforce immigration law that led to widespread immigration sweeps had a significantly higher rate of home foreclosures for Hispanics in these communities than for Hispanics in communities without such agreements. These foreclosures affected households with legal residents and American citizens.
When unauthorized immigrants fear mass deportation, they often go underground. When Alabama passed an anti-immigrant law, drafted by one of Trump’s early immigration advisors, Human Rights Watch found numerous cases in which immigrants avoided getting medical care, taking their children to school, and reporting crimes and employer abuses. Human Rights Watch also found increased harassment of unauthorized immigrants and those perceived to be immigrants, including US citizens, by police and private citizens.
Currently, many people who are arrested by immigration officials in the interior of the country have a right to a hearing before an immigration judge. Although the system is by no means perfect, it is the best chance for immigrants to present all possible claims for remaining in the US. This system, however, has an enormous backlog, with hearings scheduled sometimes as much as five years in advance.
The Trump administration plans to speed up deportations by expanding a procedure called “expedited removal,” under which an immigration agent fills out a form and the person can then be deported with the approval of the agent’s supervisor. The process can send someone fleeing domestic violence back into the trap of her abuser, or a long-term resident away from his US citizen family members, with no consideration of whether that person may be eligible for a “pardon” from deportation. Expedited removal processes have even resulted in deportations of US citizens and others who have legal status. There is probably no other area of US law in which a law enforcement officer can make such a life-or-death determination without the person affected having legal representation and court oversight.
Expedited removal is now only applicable to people caught within 100 miles of the border and within 14 days of entering the US. The border security memo indicates that the Homeland Security secretary will soon issue new regulations expanding the program nationwide for anyone who cannot prove they have been in the US for at least two years.
Border agents’ application of expedited removal already results in human rights violations, as Human Rights Watch research found on the treatment of Central Americans fleeing gang violence. Notably, many agents fail to record asylum seekers’ claims of fear and their intention to apply for asylum, in violation of US and international law. Expedited removal also gives people no chance to present to an immigration judge evidence of their ties to the country, their family or other mitigating factors.
On top of speeding up deportations, the Trump administration is giving a steroid boost to agencies and agents that have shown by their past actions to be barely restrained by the laws protecting migrants and asylum seekers.
The interior memo doesn’t mention so-called “sanctuary” cities, but it expands the local law enforcement programs that many such cities have found deeply problematic and dangerous. The administration restores the Secure Communities program, which was discontinued after numerous jurisdictions refused to participate, and expands the 287(g) program, which trains local police to become immigration agents.
Cities, counties, and states across the country ended their participation in one or both programs because of concerns that holding people for ICE was unconstitutional and that local law enforcement involvement in immigration enforcement was terrifying immigrants – to the point that they avoided the police even when they desperately need police protection. That means that crimes weren’t reported, investigated, or prosecuted. As a police officer in Los Angeles recently told the Los Angeles Times, “It is my job to investigate crimes. And if I can’t do that, I can’t get justice for people, because all of a sudden, I’m losing my witnesses or my victims because they’re afraid that talking to me is going to lead to them getting deported.” Under human rights law, all victims of crimes, regardless of immigration status, have the right to seek justice and redress. Although Trump claims his immigration policies are needed to protect public safety, expansion of these programs often counters local law enforcement goals.
These programs have also been found to facilitate racial profiling by local law enforcement. For example, a Department of Justice investigation of the Maricopa County Sheriff’s Department found that after Sheriff Joe Arpaio entered into a 287(g) agreement, deputies engaged in unconstitutional conduct, including racial profiling, and that Latino drivers in certain parts of the county were nine times more likely to be stopped than non-Latino drivers. A study by the Warren Institute at the University of California, Berkeley found that the Criminal Alien Program in Irving, Texas, led to local police arresting Hispanics for the least serious class of misdemeanors at significantly higher rates than Whites and Blacks.
To support the claim that the new immigration policies are meant to protect crime victims, the interior memo provides for establishing a new office within ICE to help victims of crimes committed by undocumented immigrants. Although addressing the needs of crime victims is an important human rights goal, singling out crimes committed by unauthorized immigrants implicitly scapegoats a particular group for widespread social problems. Singling out immigrants or other groups for committing crimes have led to dangerous results in countries around the world, including xenophobic violence.
The memo also explicitly excludes people without legal status, stating that the ICE director should “immediately reallocate any and all resources that are currently used to advocate on behalf of illegal aliens.” Undocumented immigrants are highly vulnerable to crime, sometimes by other undocumented immigrants, and often face innumerable barriers to achieving justice and redress. Their exclusion from an office devoted to crime victims perpetuates this failure to protect their human rights.
The border security memo lays out new policies that will have a devastating impact on people seeking protection under US and international law, including women and children who have been fleeing persecution and violence in Central America.
The memo says that people apprehended at the border should generally not be released pending the resolution of their immigration proceedings. It says that people released while proceedings are pending are “highly likely to abscond,” and calls for expansion of detention capacity along the US-Mexico border.
The Department of Homeland Security has only used “alternatives to detention,” such as community-based supervision programs, in limited ways, but various studies have found that people in such programs have high rates of compliance with court proceedings. One 2000 study found that 84 percent of asylum seekers under minimal supervision and 78 percent of those with no supervision appeared in court. These programs are also substantially cheaper, costing under $17 a day, compared with $161 to almost $300 per day for detention.
The memo states that the parole policy for some asylum seekers instituted under the Obama administration remains in effect. That directive stated that asylum seekers who have proven that they have a credible fear of persecution can be released while their proceedings are pending if they do not pose a danger to the community or a flight risk. But the memo emphasizes that the asylum seeker must “affirmatively establish” eligibility, and that parole authority should be exercised “sparingly,” indicating that many more asylum seekers will probably be detained while proceedings are pending.
The US already maintains a sprawling immigration detention system in which the majority of those detained have had no individualized determination of whether their detention is actually necessary to protect public safety or ensure that they show up in court. Numerous organizations, including Human Rights Watch, have documented abusive conditions, including subpar medical care that contributed to deaths, and the particular vulnerabilities of families, children, and transgender women in detention. Detention impedes due process, as existing detention facilities are often located far from attorneys, pro bono legal service providers, and the families and communities of people detained. Creating more detention facilities along the southern border would exacerbate these problems. The US government should be seeking to reduce detention, particularly of asylum seekers, rather than increasing it.
Changes to the Asylum Application Process
The memorandum also states that it will “enhance asylum referrals and credible fear determinations,” the first step of the asylum application process, but it is focused exclusively on detecting and protecting fraud, rather than countering the ongoing failure of Border Patrol agents to consistently and accurately meet their obligations under US and international law to make these referrals.
The memorandum also authorizes immigration agents to return some people to contiguous territories – Mexico and Canada – while removal proceedings are pending, conducting hearings by video teleconference. If this policy is applied to asylum seekers, the US could place asylum seekers at risk of persecution and trafficking in Mexico.
Stripping Protections from Child Migrants
In recent years, thousands of children, primarily from Honduras, El Salvador, and Guatemala, have come to the US alone. Many are seeking and are eligible for protection under US asylum and anti-trafficking laws. Under current policy, the rights of “unaccompanied” children are protected through various mechanisms, including placement in facilities suitable for children, access to social services, and adjudication of asylum claims by US Citizenship and Immigration Services, rather than through a court proceeding in which they must face a government attorney without an attorney if they cannot afford one.
The border security memo directs US Citizenship and Immigration Services, Customs and Border Protection, and ICE to develop policies that would strip children of these protections if they are released to a parent in the US. Such children should still be deemed “unaccompanied” because they are still going through court proceedings by themselves.
The memo also calls for criminal prosecution and deportation for parents who have paid smugglers to bring their children into the US. International refugee law prohibits penalizing asylum seekers for improper entry into a country. Criminal prosecution of parents for children who are fleeing persecution and violence would be contrary to the spirit, if not the letter, of refugee law.
Stripping protections from these children would not fight trafficking and abuses suffered by children who flee violence and persecution, but rather would most likely subject more children to abuse from smugglers. Children who are afraid to say they have parents in the US would spend more time in detention where, with children’s unique vulnerabilities, they often suffer severe psychological trauma.
Under longstanding US government policy, Privacy Act protections have applied to everyone in “mixed” database systems – US citizens, lawful permanent residents, and other foreign nationals, including undocumented immigrants. The Privacy Act prevents unauthorized disclosure of personal information and requires agencies such as Department of Homeland Security and Health and Human Services to follow certain procedures when they share people’s personal data with each other.
However, the interior enforcement memorandum implements a new executive order stating that Privacy Act protections will no longer apply to people who are not US citizens or lawful permanent residents. Although the intent of this change is as yet unclear, it may signal a desire to give immigration enforcement authorities access to such databases – for example, lists of people granted DACA status, or data held by other federal agencies, such as Health and Human Services, which manages refugee resettlement and services for unaccompanied minors. Such access could facilitate criminal prosecution of parents to whom unaccompanied minors have been released. To change longstanding privacy protections for foreign nationals who relied on the idea that the government would not simply hand over their personal information at will, especially if the potential consequences include deportation and criminal prosecution, is cruel and unjustifiable.