The refugee program was not the only part of the immigration system that sustained shocks this week from three executive orders by President Donald Trump. While the White House scrambled to contain the widening furor over his ban on refugees and immigrants from seven Muslim-majority countries, the administration was laying the groundwork for a vast expansion of the nation’s deportation system. How vast? Here’s a close reading of Trump’s orders:
New language to justify new powers, new priorities. The language of the immigration orders codified the grim warnings that galvanized Trump’s followers during the campaign, about dangers posed by undocumented immigrants. Immigrants in the country illegally “present a significant threat to national security and public safety,” says the order on “sanctuary cities.” It says local governments that limit cooperation with immigration authorities “willfully violate federal law”– a claim those governments reject -- and have caused “immeasurable harm to the American people.” An order on border security finds that illegal border crossers present “a clear and present danger,” language traditionally evoked during times of war.
Trump swept away enforcement priorities set by the Obama administration, which focused on deporting new border-crossers and immigrants convicted of serious crimes. President Trump gave authorities wide new discretion to determine whom to deport, including immigrants charged with crimes but not convicted and people agents think might have been involved in “a chargeable criminal offense.”
Under the orders, “the judgment of an immigration officer” is sufficient to have an immigrant deported as a public safety risk. Although the president enjoys considerable legal sway to change immigration, the broad powers Trump is trying to give immigration agents seem likely to be challenged soon in the courts.
Bracing for a battle with police. With his threat to withdraw federal funding for cities the administration identifies as sanctuaries for undocumented immigrants, Trump is heading towards a confrontation with police chiefs in cities large and small.
To be sure, his crackdown was cheered by federal agents at Immigration and Customs Enforcement, or ICE, who have long resented the cool reception they received in some cities and the Obama administration’s hands-off approach to those uncooperative jurisdictions. ICE officials pointed to their arrest in New York as recently as Jan. 25 of a Mexican, Luis Alejandro Villegas, who had served five years for armed robbery, been deported and returned illegally. After he had been arrested in December for driving under the influence, ICE officials said, New York police had released him without waiting for them to pick him up.
Trump’s order was also endorsed by the National Sheriffs’ Association, whose members run many county jails. In Texas, Gov. Greg Abbott, a Republican, moved faster and further than Trump, cancelling $1.5 million in state funds for Austin, where Travis County Sheriff Sally Hernandez, a Democrat, said she would only honor ICE hold requests for immigrants with the most serious felonies.
Many city police chiefs were wary.
“We don’t believe immigration enforcement should be forced on local police,” said J. Thomas Manger, the chief of Montgomery County, Maryland who is president of the Major Cities Chiefs Association.
Chief Manger, whose county is growing fast with immigrants from many countries, said most police departments are willing to tell ICE agents if they are holding a foreigner and to advise when that person will be released.
But Trump’s order revives a nationwide program called Secure Communities, which the Obama administration abandoned after it was crippled by court rulings and met fierce resistance in immigrant neighborhoods. Under that program, ICE agents could issue a hold request—known as a detainer--for any undocumented immigrant booked by police, no matter how minor the offense, no matter whether there was a conviction. Through that program deportations steadily rose, reaching a peak of more than 409,000 in 2012, assuring Obama the record for the most deportations by an American president. Trump has ridiculed Obama's record and said he intends to far surpass it.
But at least two federal courts found it was unconstitutional for police to detain immigrants without warrants under the Secure Communities program. It is not clear how Trump administration officials plan to get around those rulings.
Chief Manger said city chiefs hoped to persuade the new president that closer cooperation with ICE would erode vital trust between immigrants and police.
In Lake County, Illinois, home to many Latino immigrants, Sheriff Mark Curran broke with his peers in the sheriffs’ association. “Those of us who live in the real world where there are lots of Latinos in our counties would not go anywhere near something like that,” he said.
More detentions, a boon for private prison companies. Trump’s orders greatly expand immigration detention near the southwest border, requiring all foreigners arrested “on suspicion of violating Federal or State law” to be detained while they go through court. Currently Congress provides funds for about 34,000 immigration detention beds each night, a number that would have to grow dramatically.
The Department of Homeland Security never followed the lead of the Justice Department, which last year vowed to phase out private, for-profit prison contractors. Thomas Homan, the new acting director of ICE, said officials are rushing to sign contracts and locate facilities. Along the length of the border new detention centers will open their doors, something border communities haven’t seen in years.
These days many border crossers are families from Central America and migrants from Haiti and Cuba, many seeking asylum. In immigration courts, already staggering under backlogs of more than 533,000 cases, asylum claims are often taking years to resolve. Congress can expect mounting costs for holding those migrants to the end of their cases.
At the same time, at two family detention centers already open in south Texas, ICE officials have rushed to release Central American migrants under a court order that requires them to free children in three weeks or less. That is another federal ruling Trump officials have yet to reckon with.
And what about judges? At the overburdened immigration courts, officials and judges experienced whiplash after Trump’s first days in office. His orders appeared to create a huge new demand for judges to hear immigration cases, especially for people in detention. The courts have long given priority to people who are detained.
But another Trump order imposed a federal hiring freeze, including at the immigration courts, which are part of the Justice Department.
Court officials said about 65 new judges have been approved by Attorney General Loretta Lynch, but they have not yet been hired because they were going through the painstaking security vetting for federal judges. Senator Jeff Sessions of Alabama, the Republican Trump has nominated to be his attorney general, would presumably have to find a way to exempt immigration judges from the freeze.
Sessions, a staunch conservative, could also decide he wants to take a second look at his predecessor’s choices, slowing the process. It would be within his authority to start over with judges more to his ideological liking, although in the past there has been bipartisan consensus that the courts should not be politicized.
Court officials had calculated that with 330 judges, they could begin to reduce the backlogs. Today 305 judges are sitting. But with Trump’s plans to ramp up deportations, officials said they are giving up hope the caseload will decline any time soon.