Two memos signed by Department of Homeland Security Secretary John Kelly on Monday are a grim blueprint for President Trump's promised mass deportations. As implementation instructions for his January executive orders on interior and border immigration enforcement, they’re an operating manual for unprecedentedly vicious ICE and CBP crackdowns.
Heartless and cruel, the memos promise changes that will shred due process and propose to expand an already enormous federal deportation force by 15,000 new agents. Fortunately, Congress has budget control that can stop some of Trump’s terrible personnel and policy choices, including his border wall. And as with Trump’s Muslim ban, the ACLU will fight to block these memos’ unconstitutional efforts to detain and deport millions of human beings.
We think the last administration got a lot wrong about immigration enforcement — it’s ludicrous to say that President Obama’s record deportation numbers were some kind of mirage — but the Trump administration wants to compound the cruelty. In fact, the Trump-Kelly memos aim to destroy three existing pillars of compassionate, constitutional immigration enforcement:
1) Discard Humane Discretion
The memos abandon any genuine attempt to prioritize immigration enforcement. Virtually every immigrant eligible for deportation — including almost all of the 11 million people in the United States without authorization — is now a target for detention and aggressive removal proceedings.It doesn’t matter whether that immigrant has lived in the United States for a day or a decade. It doesn’t matter whether she has a serious criminal record or not. And it doesn’t matter whether strong equities exist like community contributions; extensive family ties, including U.S. citizen children; U.S. military service; or exceptional educational achievements and potential. Last week’s powerful Day Without Immigrants gave a sense of the devastating economic, humanitarian, and practical effects of banishing our neighbors, classmates, co-parishioners, relatives, and friends.
2) Dismantle Due Process
The Trump-Kelly memos try to eviscerate immigrants’ rights to full and fair hearings to determine whether the government’s attempts to remove them are supported by the facts and the law. Trump and Kelly threaten a massive expansion of shortcuts to deportation like expedited removal, which allows an ICE or CBP official, rather than an impartial judge, to have the only say on an immigrant’s future. Every immigrant deserves a real day in court and access to legal counsel to make their case, both of which are imperiled by the memos’ medieval prescription of detention for all, regardless of a particular immigrant’s flight risk or public safety threat.
Mandatory imprisonment of immigrants who don't need to be jailed, like asylum-seekers, primary caregivers, pregnant women, and people with medical conditions makes no fiscal or moral sense and is fundamentally contrary to due process. All mass detention accomplishes, besides needlessly tearing families apart and sending many kids to foster care, is a lucrative bonanza for substandard private-prison contractors.
3) Demolish the Protective Wall Between Immigration Enforcement and Police
The Trump-Kelly memos encourage state and local police, including those with records of racial profiling and brutality, to become immigration agents. They are a return to failed programs ended by the Obama administration that intertwined local police and immigration enforcement, which is a federal responsibility. The ACLU and allies won important legal victories against state “show me your papers” legislation like Arizona’s SB1070, and the federal government terminated involvement of biased police agencies like Sheriff Joe Arpaio’s in immigration enforcement.
Yet the Trump-Kelly memos want to make every cop an immigration agent, ignoring the Department of Justice and federal courts’ devastating findings that Sheriff Joe and others acted unconstitutionally in racially profiling and otherwise abusing the very public they’re sworn to protect. The memos resurrect illegal and unwise programs like Secure Communities, which courts have held flouts the Fourth Amendment by detaining individuals without a judge’s probable cause determination, and 287(g), which deputizes state and local police as immigration agents. These programs only hurt public safety by making immigrants and their families scared to report crimes, like domestic violence, that they suffer or witness.
The Trump administration has sent another gust of fear throughout the land with a mass deportation agenda that is badly out of step with fairness, due process, and liberty. Its attacks on civil liberties and civil rights affect not only immigrants but all who will suffer abuses at the hands of a vast immigration-enforcement complex the memos aspire to create. It will be defeated in courts and communities from sea to sea.