The order lays out a series of categories of undocumented immigrants that immigration law enforcement officials should prioritize for removing from the country, a reaction to what was criticized by the right as lax enforcement of immigration law by former President Barack Obama.
But experts say the descriptions include virtually every person in the country illegally and give broad latitude to individual immigration officers to decide who should be detained for deportation.
In addition to a strain on resources, critics worry the orders could cause legal concerns.
The Obama administration had prioritized expulsion of undocumented immigrants who threatened public safety or national security, had ties to criminal gang activity, committed serious felony offenses or were habitual misdemeanor criminal offenders.
Trump’s order goes far beyond that, using a sweeping definition of “criminal” and giving a single immigration officer the ability to make judgments on threats to public safety.
The order says the priority will be removing deportable immigrants who “have been convicted of any criminal offense; have been charged with any criminal offense, where such charge 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 or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.”
The order labels each category “A” through “G,” but doesn’t make explicit whether they are in decreasing order of significance or equal.
Experts say the order would seemingly include all undocumented immigrants — a departure from Obama administration policies that extended some protections to those that have lived in the US for potentially decades and have otherwise been contributing members of society. The Obama administration offered formal protection to a group under the Deferred Action for Childhood Arrivals program, geared toward undocumented immigrants brought to the US as children who grew up here and were pursuing education or jobs.
Trump has said that such individuals are not his priority, that he wants to focus on removing “bad dudes.” Nevertheless, his sweeping executive order would seemingly allow for anyone to be detained for removal proceedings, even if they have only been suspected of committing a crime, including misdemeanors, or of being a threat.
“I think it covers just about every illegal alien in the country,” said Hans von Spakovsky, a legal expert at the conservative Heritage Foundation, which has been strongly influential on Trump’s policy
. “It’s also very clear that the No. 1 priority is people who have been charged and convicted with criminal offenses, and that’s the kind of violent criminals who should be out of the country.”
Still, there’s nothing in the current order that makes that clear. It places a violent criminal at the same level as a parent of US citizen children who works and contributes to their community, said Washington University law professor Stephen Legomsky.
“That strikes me as crazy,” said Legomsky, who has served as a consultant to Obama, former President Bill Clinton and the George H.W. Bush administration.
Legomsky and other experts believe the order places tremendous authority on individual ICE agents and divisions.
The union that represents ICE agents endorsed Trump during the campaign, offering harsh criticism of Obama’s enforcement priorities. Under the past administration, officers were “unable to arrest or are forced to release many of the most dangerous (criminals) back into U.S. communities due to unscrupulous political agendas and corrupt leaders,” National ICE Council President Chris Crane said in a statement about the endorsement.
The new enforcement priorities, and the additional 10,000 immigration officers prescribed by the orders, are presumably designed to give ICE what it wants — more authority.
But a former acting ICE director under Obama says that the new enforcement priorities risk overwhelming an already stressed system and makes it more difficult for individual officers.
“The language here, the fact that it says ‘in the judgment of an immigration officer,’ that doesn’t suggest there’s going to be supervisory review, it strongly suggests this is going to be the judgment of officers in the field and they’ll have broad discretion about when and where to arrest someone and bring proceedings,” said John Sandweg, now at a crisis management firm.
Sandweg said ICE data shows that only a few hundred thousand individuals can be removed per year, and that immigration judges and detention facilities are already overwhelmed by cases. He said that was why the Obama administration set limited priorities and specified types of criminals to target.
“I think the idea of saying there’s a limited number of people can be deported in a given year, let’s make sure that they’re the most violent and most dangerous, that makes sense,” he said, “and this seems to be a reversal of that policy and I think endangers public safety as a result.”
While Trump’s orders call for an increase in detention facilities and judges to be assigned to those facilities, it will be up to Congress to determine how much resources go to implementing these measures.
Critics of the order are also concerned about the legal implications of not just targeting convicted criminals, but including anyone even suspected of crimes.
Heidi Altman, director of policy at the pro-immigrant National Immigrant Justice Center, said the order would allow “immigration officials to target undocumented people on the basis of their whims in that moment.”
She argues that’s problematic because it contradicts principles of the criminal justice system, including the presumption of innocence.
“An ICE officer is now making the determination to detain and deport someone that no one has adjudicated for veracity,” Altman said. “Innocent people get arrested in the United States a lot. … Especially among communities of color, there are always going to be instances of racial profiling, and minorities face more aggressive policing than white communities — that’s true as well for immigrant communities. This (order) renders presumption of innocence completely meaningless.”
Legomsky and Cornell law professor Stephen Yale-Loehr said the enforcement provisions likely couldn’t be challenged in court simply for how they are written, as undocumented immigrants are eligible to be detained and deported under the law.
But if the implementation of the law results in racial profiling, for example, critics could have grounds to challenge.
“I think most of the concerns are policy concerns rather than legal concerns, but if more racial profiling materially increases as a result of this, then yes there could be serious equal protection and even Fourth Amendment — unreasonable search and seizure — type of concerns,” Legomsky said. “That is speculative though, that really depends on how these orders are implemented.”
Ultimately, von Spakovsky says that activists who fear the persecution of contributing members of society for being undocumented are ignoring the fact that illegal immigration is against the law.
“I see nothing wrong with deporting individuals who are in the country illegally, and I say that as a son of immigrants,” he said. “But my parents followed the rules to come into the country and I, like a lot of Americans, resent people who think they can break the rules and stay in the country and get ahead of people who follow the rules that we set up.”