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Homeland Security Secretary John Kelly listens as President Donald Trump speaks during a meeting in the Roosevelt Room of the White House.
Analysis

Trump’s Radical Departure on Immigration

A softer tone from the White House belies a harsher reality.

Seven years ago, Kenneth Tenebro, an Army lieutenant based in New Jersey, contacted me at The New York Times, where I was until recently a reporter covering immigration. A Filipino immigrant, Tenebro had served one combat tour in Iraq and wanted to step up for another. But he had a secret he had not told anyone in the military. His wife Wilma, also from the Philippines, was here illegally.

Throughout his time at the front in Iraq, Tenebro had lived with the fear that the government he was serving would deport his wife while he was away. He had decided to go public with his story, risking his army career, to push for a change.

My article about the Tenebros drew attention in Washington. After years of painstaking consideration, in 2013 immigration officials created a legal exemption that allowed undocumented spouses and parents of service members to get their green cards and become permanent residents. Since then, thousands of military families have been spared the fear of separation.

Then Trump issued his executive orders on immigration, and Homeland Security Secretary John Kelly published instructions last week on how to carry them out. The plain language of the directives seemed to bring an end to the exemption. But after days of alarm and confusion among immigration lawyers and at the Pentagon, Department of Homeland Security officials clarified late last week they did not intend to cancel the military program after all.

David Kubat, an immigration lawyer and National Guard member in Minnesota who counsels military families, said the episode revealed how little review had gone before the orders. "It shows casual disregard,” Kubat said.

At the very least, it showed that the White House and the Homeland Security secretary had not thought through all the consequences of their orders. At times, the president and Kelly seem to be reading from different scripts.

“There will be no, repeat no, mass deportations,” Kelly said during his visit to Mexico last week. Agents would focus on “the criminal element,” he said, and their operations would be “done legally and according to human rights and the legal justice system” of the U.S.

“The courts will decide what will happen to them,” Kelly said.

The president dangled vague offers of compromise and moderated his tone in his speech to Congress on Tuesday, but he did not soften his message. He said Americans were living in “an environment of lawless chaos” because of failures of enforcement. He focused attention on guests in the hall who had lost loved ones in terrible killings by immigrant criminals.

He said the blitz of deportations he promised was well underway. “Bad ones are going out as we speak,” Trump said.

But the president’s statements come closer than Kelly’s to conveying the practical impact of his policies. As much as authorities insist they are just doing a more rigorous version of what the Obama administration did, Trump’s two enforcement orders together with Kelly’s guidelines are a radical departure from the recent past.

They alter basic operating principles, accelerating deportations and sharply curtailing access to lawyers and immigration courts. Flexing the muscle of the executive, Trump has shifted the emphasis of the system, closing down avenues for immigrants to come legally and expanding ways to keep them out or expel them.

They call for a major expansion of expedited removals, deportations that can be carried out without any court proceedings. Under the Obama administration, expedited removals were used for recent border crossers: migrants caught within 100 miles of a land border and within 14 days of when they entered illegally. Now these fast-track deportations can be used for people detained anywhere in the country who have been here for two years or less.

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But most immigrants don’t carry documents, such as a paystub, proving they have been in the country for at least two years. Once detained, it would be hard for them to gather such evidence, especially without a lawyer, and legal help is scarce. Kelly’s memos do not clarify the rules to ensure that people entitled to court hearings will not be summarily expelled.

I’ve been wondering what would happen to someone like Nora Galvez if agents applied expedited removal.

Galvez, a Mexican woman in Ohio, spent years picking and packing apples in the state’s farm belt. A single mother, she was raising an American-born son, Alexis. He was 8 years old when she was detained by Immigration and Customs Enforcement in 2014, after the misfortune of being a passenger in a car stopped by police for a traffic violation.

Galvez was fighting in immigration court, with the help of rights advocates, for her slim legal chance to avoid deportation and the end of her efforts to achieve a decent education for her son. “He is crying and crying,” she said. Proud of his good grades in public school, the third-grader was anxious because he could not speak well or write in Spanish. I lost contact with Galvez as she was facing her final hearing to plead her case to stay.

The new guidelines also make it more difficult for migrants who ask for asylum to gain entry and win in the courts. Families from El Salvador, Guatemala and Honduras, many running from vicious gangs, were a good part of a new surge in asylum-seekers at the Mexican border last year.

Under the Obama administration, migrants had to convince an immigration officer that they had a “credible fear” of harm if they were forced to return home. The great majority of people from Central America—more than 80 percent—passed that initial test. Now Kelly has raised the hurdle. At that early stage, asylum-seekers, in detention and with little understanding of American law, must present “credible evidence” they have a “significant possibility” of winning a claim.

Rather than offering protection, the guidelines now emphasize scrutiny, putting the burden on migrants to convince asylum officers they are not faking or repeating lines they learned from coaching by smugglers.

The directives are especially harsh for children trying to join parents in the U.S. They made me think of Alejandro, an 8-year-old Honduran boy with a quizzical gaze I met on hot day on a dirt road in tall grasses along the Rio Grande river in south Texas. He was traveling “by myself,” he told a Border Patrol agent who leaned over to hear his small voice, although a smuggler named Santiago had helped him along the way. He had his birth certificate in his pocket, and in his head he had the name of the city where he would find his parents: San Antonio.

As an unaccompanied minor, he would be placed in a federal shelter, where social workers would do what they could to connect him with his family.

About 155,000 of those minors have crossed the southwest border in the last three years, official figures show. To stop that flow, unaccompanied children claimed by parents in this country will now be placed in deportation like adults. Families’ attempts to bring their children to safety will be treated as an “intolerable” criminal enterprise. Parents who pay smugglers to bring children will be deported or criminally prosecuted for abetting trafficking.

At the same time, the guidelines appear to cut back the small program the Obama administration created to allow children from Central America to join parents legally. Of 1,818 minors who came to the U.S. as of December 2016 through the Central American Minors program, 969 came with an entry permission known as a parole. Kelly’s instructions effectively put an end to that option, saying it “contributed to a border security crisis.”

“All deportations will be according to our legal justice system, which is extensive and includes multiple appeals,” Kelly said in Mexico. But in practice, Trump's orders mean that the deportation process for many immigrants will not be extensive at all.