Allowing some state governors to deputize the National Guard to help arrest and detain immigrants isn't the only step the Trump administration considered to carry out the president's executive order on immigration. The administration also sketched out plans for wide-scale, mandatory detention of asylum seekers; sending immigrants back to Mexico while their cases were still pending in immigration court; and making it much easier to deport unauthorized immigrants living in the US without a court hearing at all.
The Trump administration forcefully denied reports (originally made by the Associated Press) on Friday that it was considering deputizing some National Guard units to enforce immigration law.
But it didn’t deny that the memo that proposal came from — which lays out options for implementing an executive order President Trump signed, and which is dated January 25, the day he signed it — was real.
The memo, obtained by Vox and posted here, appears to have been a starting point, as the Department of Homeland Security considered how to translate Trump’s executive order on border security into policy. And while the National Guard proposal got the initial round of attention, it’s far from the only suggestion in the memo that would represent a huge crackdown on immigrants trying to enter (and living in) the US.
Leaks of draft policies have become common under the Trump administration, and both Vox and other outlets have received and published leaked drafts of potential executive orders that President Trump might sign. This memo, though, is different. It’s the starting point for the discussions about how to implement Trump’s sweeping executive order on border policy issued January 25.
The final memo, reportedly coming out in the very near future, may not include all the most aggressive proposals. It’s almost certainly been revised, and the National Guard provision might not have been the only one eliminated.
But much of this memo — including some of the most drastic changes it suggests — simply reflects the executive order Trump already signed. For those provisions to be less aggressive in their final version, DHS would have to soft-pedal the order.
Asylum seekers would be detained, with less chance to stay
Trump’s executive order told DHS “to ensure the detention of aliens apprehended for violations of immigration law.” The draft memo spells out what that might mean: Pretty much any immigrant caught coming into the US without papers will be detained until they are sent out of the US (or ordered to leave).
The draft memo allows agents to release an immigrant if required to do so by law or a federal court order, or if they are officially approved for parole by an ICE or Customs and Border Protection director. But that’s it. Everyone else will be detained.
The order might seem reasonable; after all, the only way to make 100 percent sure an immigrant doesn’t abscond into the US without papers is to keep her in custody. But in practice, it’s hugely problematic because of who’s coming over the border right now.
According to Customs and Border Protection, nearly half of all unauthorized immigrants apprehended crossing the border in the fall of 2016 (from October to December) were either unaccompanied minors or families traveling together. In most cases, these children and families came from Central America; in many cases, they were seeking asylum from violence there.
Immigrants in detention have a much harder time getting a fair hearing, a lawyer, or time to make their case. This means the government is more likely to send a person who should have qualified for asylum back to her home country, putting her in mortal danger. (It’s a violation of international law for countries to return people to places where they’re unsafe.)
Existing court orders limit the extent to which the government can detain families (though the Obama administration tried to push the envelope on that, and it’s possible the Trump administration will as well). But other asylum seekers are fair game. And the draft memo also ends an Obama administration policy that allowed asylum seekers to stay out of detention as long as they went to an official port of entry to apply rather than sneaking across the border.
Additionally, the draft memo signals that it’s going to be harder for immigrants to persuade immigration officers to even let them apply for asylum.
Immigrants who are apprehended trying to enter the US have to demonstrate that they have a “credible fear” of persecution to be allowed to stay and apply for asylum; otherwise, they can be deported. The draft memo doesn’t change the standards by which immigrants can qualify for “credible fear,” but it does ask agencies to review those standards. And since it spends several paragraphs making a case that “the asylum process is rife with fraud and abuse,” it’s reasonable to assume that review will result in making it harder for immigrants to stay (even in detention) and apply for asylum, rather than being rejected and deported outright.
Immigrants could be sent to Mexico first — and formally deported later
The problem with mandatory detention is that immigration agents simply don’t have the capacity to do it. There aren’t enough beds in immigration detention facilities to keep everyone. And backlogs in immigration court mean that anyone who has to go through formal deportation proceedings can spend years in court before they can actually be deported.
The executive order signed by President Trump suggests one way to fix this: sending people back “to the territory from which they came” while their cases are still pending in immigration court.
Basically, it’s a “deport first and ask questions later” strategy.
Under the draft memo, immigration officials would use the “deport first” strategy for any immigrant apprehended crossing the border who they didn’t think was likely to try to cross illegally again. And the memo directs DHS (as well as the Department of Justice, which runs the immigration courts) to increase its capacity to hear deportation cases over videoconference, so that it can hear cases of people after they’ve been sent back.
Agents might not want to use this option in most cases — it’s not clear how many immigrants would try to cross once, then be content to hang out in Mexico while waiting for their case to be processed instead of trying again. But it’s possible that some asylum seekers might be willing to wait.
Interestingly, while the order signed by Trump specifies returning immigrants to the “territory they came from,” the draft memo implies that immigrants crossing over from, say, Mexico could be sent back there even if they weren’t Mexican — which, given the demographics of immigrants coming into the US in recent years, means a lot of Central American immigrants would end up stuck in Mexico.
It is (to understate things) not a given that the Mexican government will be okay with the US sending people — especially non-Mexicans — back to Mexico for an indefinite period of time while their cases move through a massively backlogged court system. The measure might be intended to pressure Mexico to do more on its own southern border to prevent Central Americans from coming north to begin with — but to the extent that Mexico has been effective in preventing people from getting to the US, it’s been in large part because of US support.
If immigrants couldn’t prove they’d been in the US more than 90 days, they’d be deported — without a trial
The biggest departure from the text of the executive order that’s already been signed — other than the National Guard provision — is a proposal to make it much easier to bypass the immigration courts entirely and deport people without a court hearing.
This is called “expedited removal,” and it’s currently used for anyone apprehended within 100 miles of the border who can’t prove to an immigration officer they’ve been in the US for more than 14 days. The proposal in the leaked draft memo, however, would allow deportation without a court hearing for any unauthorized immigrant apprehended anywhere in the US, unless they could prove to an immigration officer they’d been here for at least 90 days.
The overwhelming majority of unauthorized immigrants have been in the US for years. But it’s not clear what proof of that immigration agents would accept.
The signed executive order doesn’t say anything about expedited removal, so it’s possible that the draft memo’s proposal about it could be walked back or removed entirely (just as the National Guard provision apparently was). But if it remains in the final version — depending on how immigrants are expected to prove their residence — it could pose a serious problem for any unauthorized immigrant anywhere.
Children who came to the US alone could be deported if they reunite with a family member while here
In recent years, thousands of “unaccompanied alien children” (again, mostly from Central America) have come to the US, often fleeing persecution or seeking to reunite with relatives living in the country (or both). Because the procedures for detaining and processing these children are so different, they’ve exacerbated the immigration court backlog and taken resources away from other immigration enforcement. And, to the consternation of many immigration hawks, most of them have been allowed to stay in the US in one form or another.
The executive order Trump signed last month tells DHS to make sure that unaccompanied children, “when appropriate, are safely repatriated” to their home countries. The draft memo suggests one way to do that: by changing the definition of who counts as an unaccompanied child.
The draft memo cites a statistic that 60 percent of children who arrive in the US unaccompanied end up in the custody of a relative (the Department of Health and Human Services, which is responsible for the care of unaccompanied immigrant children, usually tries to locate a relative to take care of the child because it has limited capacity). It suggests that children who are reunited with their parents once in the US should no longer be considered “unaccompanied alien children” within the US immigration system — and should therefore be treated as regular unauthorized immigrants and placed in deportation proceedings.
This is another proposal that might be walked back before the final guidance is issued — especially because it might be hard to make such a sweeping change to policy that involves the Department of Health and Human Services without consulting the Department of Health and Human Services about it. But if it happens, it could mean the return of thousands of immigrant children and teens to the countries they feared enough to risk their lives to leave.