What's New In Those DHS Memos On Immigration Enforcement?

Enlarge this image toggle caption Bryan Cox/ICE via AP Bryan Cox/ICE via AP

Ever since Donald Trump entered the presidential race, his comments on illegal immigration have been pored over in the press — from vows to deport millions of people to promises that any enforcement plan would have "a lot of heart." Observers asked, again and again, how rhetoric would translate into actual policy.

Now activists and experts have the policies themselves to examine.

On Jan. 25, Trump signed a pair of executive orders on immigration enforcement (not to be confused with his "travel ban" affecting refugees and seven majority-Muslim countries). The documents signaled that he would pursue a path of greatly expanded deportations — and an actual wall on the U.S.-Mexico border.

On Tuesday, the Department of Homeland Security released two memos outlining how those orders would be enforced. The memos, signed by Secretary John Kelly, have been described by immigration activists as a blueprint for "mass deportation," though the administration has denied that.

It will take time for some of the new policies to be made reality — and in certain cases, DHS must wait for funding from Congress. But in the meantime, here are a few key takeaways:

The memos, like the orders, drastically expand the category of people classified as "priorities for removal"

Under the Obama administration, immigrants in the U.S. illegally who had been convicted of serious crimes were prioritized for deportations. Under the new rules, federal agents could seek to deport people in the country illegally who were convicted of any crime, no matter how minor. In fact, agents could prioritize for deportation people who have just been charged with a crime — or people who have committed an act for which they could be charged.

Anyone who has "abused any program related to receipt of public benefits," and anyone an immigration officer deems a risk to public safety or national security, also could be marked as a priority.

The shift in policy could affect up to 11 million people

Immigration advocates have highlighted, in particular, the fact that people who have "committed an act for which they could face charges" could be made a priority.

"Because immigrants can technically face charges for entering the country illegally," NPR's Adrian Florido explained in January, the policy "potentially makes any immigrant in the U.S. illegally a deportation priority just by virtue of being present."

According to the Pew Research Center, there were 11.1 million people living in the U.S. illegally in 2014; two-thirds of them have been in the country for a decade or more, Pew says. That year, more than half of immigrants in the country illegally were from Mexico, 15 percent were from Central America and 13 percent from Asia. NPR's Hansi Lo Wang has more on the demographics of the group.

The memo preserves Obama's protections for DREAMers, at least for now

During Barack Obama's presidency, an executive action called DACA — Deferred Action for Childhood Arrivals — offered temporary work permits and protection from deportation to people who arrived in the U.S. as children. It covered hundreds of thousands of people, sometimes referred to as DREAMers.

There was broad concern among people with DACA protections that Trump would end the program, and January's executive orders didn't offer any clear signal about the program's future.

But the DHS memos explicitly state that DACA remains in effect. They also state that DAPA, a program for the parents of U.S. citizens that has never been implemented, will be "addressed in future guidance."

DHS plans to hire thousands more agents ...

The memos, like the original orders, call for 10,000 more officers and agents at Immigration and Customs Enforcement and 5,000 more at U.S. Customs and Border Protection.

That will require funding from Congress. And CBP, which has struggled with preventing corruption, already has trouble filling open positions, according to a recent report from The Associated Press that focused on the CBP's use of polygraph tests in hiring.

... and ICE and CBP will resume partnerships with local law enforcement officers

The federal 287(g) program authorizing state and local officers to identify and arrest people who are in the U.S. illegally has been controversial; the Obama administration pared down the program's use after allegations that it led to racial profiling. You might remember Maricopa County Sheriff Joe Arpaio's use of the program in Arizona, which was suspended in 2011 after the Justice Department found that county officers unlawfully stopped and detained Latinos.

In the memos, DHS officials call the 287(g) program a "force multiplier" and say the assistance of state and local police is critical to immigration enforcement. Kelly calls for ICE and the CBP to immediately partner with all willing and qualified jurisdictions.

Unaccompanied children could be deported, and their parents could be prosecuted

When draft versions of the memos leaked last week, one policy in particular made headlines: a directive to deport some unaccompanied children, and deport or prosecute anyone who helped bring a child into the U.S. illegally.

There's no exemption in the new policies for parents who are attempting to bring their own children to live with them in the U.S. In fact, "parents and family members" are explicitly identified as subject to prosecution if they have paid to have their children brought across the border.

"Tragically, many of these children fall victim to robbery, extortion, kidnapping, sexual assault, and other crimes of violence by the smugglers and other criminal elements along the dangerous journey through Mexico to the United States," one memo reads.

"Regardless of the desires for family reunification, or conditions in other countries, the smuggling or trafficking of alien children is intolerable."

Stephen Legomsky, who served as chief counsel at U.S. Citizenship and Immigration Services during the Obama administration, says prosecution in such instances would be a new step for the U.S. government.

"I can't think of any precedent, ever, for any administration to criminally prosecute parents for paying to have their children smuggled," he says.

There is some historical precedent for the other option the memo raises, of deporting parents who have their children smuggled in. Decades ago, immigration officials used to use an unaccompanied child's arrival to facilitate deportation of the parent — but the practice generated "such ill will" that the government stopped doing it, Legomsky says.

More people already in the U.S. could be deported without review by a judge ...

The memos say the department wants to expand what's known as "expedited removal," which means that migrants don't go before an immigration judge — they're just deported, with no hearing or review.

Under Obama, this expedited process was used only for recently arrived immigrants within 100 miles of the border.

DHS is looking to expand expedited removal all over country, for any immigrant who can't show he has been in the U.S. for at least two years.

... and arriving asylum seekers might be detained in Mexico even if they aren't from Mexico

Kelly calls for people caught crossing the border who would like to appeal for asylum to be returned "to the foreign contiguous territory from which they arrived, pending the outcome of removal proceedings."

ProPublica has reported on the implications of this policy. Journalists Ginger Thompson and Marcelo Rochabrun write that based on current trends, the plan could potentially affect "hundreds of thousands of Guatemalans, Hondurans, Salvadorans, Brazilians, Ecuadorans, even Haitians."

They'd communicate with U.S. immigration officials "via video conference calls ... from facilities that Mexico would presumably be forced to build," ProPublica reports.

Kelly's memos say the policy would free up "detention and adjudication resources" in the U.S. for the department to use in other "priority" cases.

The administration plans to move forward with a border wall

According to the memos, CBP "shall immediately begin planning, design, construction and maintenance of a wall ... along the land border with Mexico."

NPR's Danielle Kurtzleben has written about the logistical hurdles and high cost of such a wall, which one poll suggests 37 percent of Americans support.

Our reporters have also written extensively about the environmental impact of a wall, the economic consequences of a tariff to pay for the cost, and the difficulties of building existing fences along some of the border.

If you're curious about what the barriers along the border look like now, check out "Fence Facts," from NPR's Borderland project.

Open questions: Where, how and with what funds will detention centers and courts be expanded?

The note about "detention and adjudication resources" raises a big question: How will the Department of Homeland Security handle expanded deportations at the level indicated by the memos?

There are already massive backlogs at immigration courts across the country; the memos call for a "surge" in immigration judges. And for the past few years, the department has had roughly 34,000 beds at detention centers. The memos call for detention capabilities to be "expanded," focusing on areas near the border, but don't get more specific about how.

DHS is the first to note that it will take time and money to scale up deportations. That's one reason it pushes back on descriptions of the memos as enabling mass deportations — it says it needs time to implement many of the new policies, and thus there's no need for "panic."

But how long it will take, how much it will cost and where the money will come from isn't clear.

DHS relies largely on private, for-profit prisons — which currently hold more 70 percent of the department's detainees, as NPR's John Burnett reported last month. Trump has also spoken positively about private prisons.

As a result, many anticipate that an expansion of DHS operations will be profitable for private prison companies. John notes that for-profit detention at "all levels" has been sharply criticized. Complaints include poor living conditions, understaffing, security risks, mismanagement and poor medical care.

Last year, the Justice Department announced it would phase out the use of private prisons. The decision did not affect DHS.