On February 20, 2017, John Kelly, Secretary of the U.S. Department of Homeland Security (“DHS”) issued two memorandums: (a) Enforcement of the Immigration Laws to Serve the National Interest (“DHS Enforcement Memo”) and (b) Implementing the President’s Border Security and Immigration Enforcement Improvement Policies (“DHS Border Security Memo”). Each reflects the new administration’s policies toward immigration enforcement and border security.
A. The DHS Enforcement Memo
The DHS Enforcement Memo outlines the administration’s enforcement priorities, which tilt toward aliens who (a) have committed, or been charged with committing, criminal offenses; (b) have “abused” any public benefit program; (c) have been ordered removed, but remain; or (d) pose a risk to public safety or national security. At the same time, the DHS Enforcement Memo makes clear that any FN who is in the United States without authorization will be subject to removal and that no category or class of FNs is exempt from removal. To implement this objective, the DHS Enforcement Memo terminates all prior agency guidelines, directives, or programs, with the noted exception of the “Dreamers,” who have been allowed to stay under former President Obama’s executive order that applies to FNs who were brought to the United States as children (known as the “DACA Program”).
To support these enforcement efforts, the DHS Enforcement Memo urges expansion of the Section 287(g) program, which allows state and local law enforcement officers to be designated as immigration officers authorized to enforce federal immigration laws. However, many states and localities have refused to participate in this program because they fear that it hinders local law enforcement by driving a wedge between the police and immigrant communities.
The DHS Enforcement Memo also directs agency personnel to make full use of their statutory authority to remove illegal aliens expeditiously. Under the Obama administration, the use of such “fast track” authority had been restricted to aliens apprehended within two weeks of entry or found within 100 miles of our border. Now, DHS proposes to use its fast track removal on any FN who cannot demonstrate that he or she has been here for two years. To support this objective, the DHS Enforcement Memo instructs U.S. Immigration Customs and Enforcement (“ICE”), the DHS agency with primary responsibility for immigration enforcement, to hire 10,000 additional ICE agents and 5,000 additional CBP border patrol agents, as well as “the additional operational and mission support and legal staff necessary to hire and support their activities.” According to The Wall Street Journal, this will add approximately $4 billion to the annual budgets of these agencies, assuming that all the projected hiring can be achieved.
B. The DHS Border Security Memo
The DHS Border Security Memo addresses other aspects of the new administration’s ambitious immigration enforcement program. This memo calls for using the “expedited removal” process to deport any alien who has been in the United States illegally for less than two years, wherever he or she is located. Under the Obama administration, this authority had been limited to apprehensions near the borders. The DHS Border Security Memo also requires detention of all aliens “deemed inadmissible” who arrive in the United States, pending a determination of their right to remain. Estimates are that this may require additional detention facilities for 200,000 people on a daily basis. Presently, the government has detention capacity approaching 35,000 beds, and this is estimated to cost $2 billion annually! The Wall Street Journal notes that it costs the federal government $125 per day to house an alien. Moreover, DHS acknowledges that it currently takes more than two years before it can schedule a removal hearing before an immigration judge. The costs of constructing these detention facilities and housing apprehended aliens until their cases can be heard will be enormous.
The DHS Border Security Memo also directs the “planning, design, construction and maintenance of a wall along the land border with Mexico to begin immediately, in the most appropriate locations.” DHS has estimated that more than $21 billion will be required to cover the cost of this project, but Congress has yet to appropriate any funds for this wall. At the same time, the DHS Border Security Memo requires ICE to return illegal aliens arriving from Canada or Mexico to “the territory from which they arrived, pending formal removal proceedings.” It is unclear whether Canada and Mexico will cooperate in this effort and, if they do, whether it might create the type of refugee problem that has resulted in other parts of the world, making the border environment even less secure by destabilizing our neighbors.
Furthermore, although the DHS Border Security Memo acknowledges that aliens in this country are entitled to removal hearings, it does not suggest how immigration courts will handle the flood of new cases that these enhanced enforcement efforts will generate. Every FN in the United States, including those who arrive at our borders, is entitled to due process. The immigration courts already are overwhelmed. DHS reports that there are more than 530,000 cases currently pending. According to The Wall Street Journal, it may be necessary to hire more than 500 new immigration judges and applicable support staff to satisfy our constitutional obligations. Each position costs approximately $200,000 annually, plus the staff (translators and court personnel) and ICE prosecutors necessary to support this massive increase in caseloads. At the present time, however, the government has been unable to recruit sufficient immigration judges to fill its current appropriation of 250. Moreover, Congress has not appropriated any additional funds for this effort.
In short, there are many ambitious proposals in the DHS Enforcement and Border Security Memos. However, it remains to be seen whether Congress and the country have the political will to dedicate the tremendous resources required to support these efforts. These DHS memos, which require robust immigration enforcement against FNs whose only transgression is being in the United States, have the potential to supplant other items in the federal budget that may be more important to the American people. Moreover, the new administration’s focus on enforcement may ignore broader political and economic issues. According to The Wall Street Journal, polls show that most Americans oppose the mass deportation efforts that these DHS memos direct. Also, the nation is graying and facing significant labor shortages in many areas. If the administration’s policies spur economic growth, these shortages will worsen. To date, the administration has yet to develop a proposal for expanding legal immigration, which may be essential for a growing economy.
As we noted when President Trump was elected, his policies on immigration may spur a healthy public debate on immigration that leads to comprehensive immigration reform because the political, economic, and social costs of an enforcement-only policy may be so detrimental to the national interest.