Someone who voted for US President Donald Trump on the basis of his promises to get tough on immigrants and refugees could be forgiven for being a bit disappointed some 80 days into his administration. Mexico does not seem any closer to paying for a wall, the “Muslim ban” failed to pass legal muster (as MigrationVoter predicted), and Trump seems to have abandoned, at least for the moment, promises to crack down on funding for sanctuary cities and overturn DACA. (This last one is a real tough one to swallow for anti-immigration advocates. As Mark Krikorian of Center for Immigration Studies writes on his blog, he expected to be disappointed, but not “for Trump to break an explicit promise regarding his headline issue on the administration’s first business day in office.”)
Past disappointments aside, yesterday gave some signs to advocates against immigration that Trump has not abandoned all of his anti-immigrant promises.
First, Attorney General Jeff Sessions, himself a well-known advocate of restrictive immigration policies during his senate years, delivered a speech to border enforcement in Arizona intended to outline coming changes to the immigration and border enforcement system.
For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era. The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.
Sessions announced two types of changes: 1) new recommendations to federal prosecutors mandating prioritization of certain types of crimes, 2) reforms to immigration courts.
New Recommendations to Federal Prosecutors
The new recommendations will require federal prosecutors to consider filing additional criminal charges against undocumented immigrants they capture, including: transportation or harboring of immigrants, fraud and aggravated identity theft (if they uncover forged identity documents) assault on a federal officer, and felony re-entry.
⇒ So what does this really mean? Sessions is essentially instructing federal prosecutors to stack charges against undocumented immigrants as high as possible. If any felony charges stick, that person will be labeled a criminal illegal alien, which as we know, is the group this administration has promised to target for deportation. By pushing for more felony convictions, they widen the number of people who can be considered “criminal aliens” and can make it more difficult or impossible for these people to ever return to the US.
Since these are recommendations, it is obviously at the discretion of prosecutors to push for multiple counts against undocumented migrants in their jurisdiction (and each count takes time and evidence to back up and litigate.) So to ensure that no prosecutors are tempted to ignore these guidelines out of disinterest or convenience, the DOJ has thrown in an additional component: all 94 district attorney’s offices (not just those from border areas) must now appoint a Border Security Coordinator – to headline the efforts against undocumented immigrants. If this is someone’s entire job, they are certainly more likely to prioritize the DOJ’s recommendations and try to convict undocumented immigrants of as any crimes as possible.
Changes to Immigration Court
Sessions announced a new streamlined procedure to appoint more federal judges to immigration benches, with the goal of hiring 50 this year and 75 next year to help reduce the backlog of immigration cases. In addition, all immigrants apprehended at the border will now automatically be sent to detention centers, where judges will directly come to them to decide their fates. For this, he promises to hire 25 new judges. (Note: This backs up an earlier memorandum from Department of Homeland Security calling for detention for all apprehended immigrants and more judges and officers, but it still isn’t clear whether this changes Trump’s federal hiring freeze for other kinds of supporting employees judges may need.)
⇒ So what does this really mean? People on both sides of the immigration debate agree that there is a need for a higher number of qualified immigration judges to ensure that people in immigration detention and awaiting decisions on asylum claims can have their claims adjudicated more efficiently. A “streamlined” procedure for hiring raises eyebrows, in that some may question whether it will be possible to get the best-qualified candidates to judge incredibly complex immigration cases in an abbreviated procedure. Given that under the existing system judges have faced criticism in the past, who knows whether or not this will be a downgrade. We’ll have to wait and see on that one.
The potentially more interesting aspect is the 25 new detention center judges. Unlike criminal charges, immigration offenses do not typically entitle the accused to a lawyer. Having adjudication take place directly at the detention center decreases the likelihood of an individual being aware of their rights, such as the possibility of seeking asylum or applying for temporary protection or a special visa (like Special Immigrant Juvenile Status.)
It also raises concerns about the circumstances of detention. Automatic detention for everyone would presumably include children, and there is some question to the legality of this under international law (see, for instance, here and here.)
Newcomers to DHS from the Anti-Immigrant Community
Aside from Sessions’ very clear statements yesterday in Arizona, we received another hint this week at the Trump administration’s intentions to get tough on immigration. The Department of Homeland Security hired two high-profile advisors linked to the group FAIR and think tank Center for Immigration Studies. Both organizations were founded by the far-right anti-immigration activist John Tanton, and support policies like an end to birthright citizenship and heavily reduced legal immigration, as well as much stricter enforcement of existing laws.
According to the DHS spokesman, as reported by CNN, Jon Feere, formerly of CIS, has been hired as an advisor to the director of ICE. Over at Customs and Border Protection, Julie Kirchner, the former executive director of FAIR, has been hired as an advisor to the commissioner. We’ll take a deeper look at the implications of these choices later in the week, but for now its worth noting that Trump’s once stalled plans on immigration seem to be moving along once more, and their direction is quite clear.