Risks and Rights in the Age of Aggressive Immigration Enforcement


Five days after taking office, President Trump signed an Executive Order entitled “Enhancing Public Safety in the Interior of the United States.”  This move signaled a dramatic shift in executive priorities by greatly expanding the number of undocumented immigrants targeted for deportation.

This post will describe important features of the Executive Order, and link to legal resources that will help immigrants understand certain rights that apply when they are approached by federal agents or processed for deportation.

The Immigration Enforcement Framework

President Trump campaigned on a promise to deport up to 11 million unauthorized immigrants living in the United States.  In line with that pledge, the Executive Order calls for hiring an additional 10,000 immigration agents, potentially doubling the federal government’s enforcement capacity at a cost of nearly 15 billion over the next 10 years.

The Executive Order also enlists cooperation from state and local agencies under “287g agreements,” referring to the statutory provision that authorizes state and local officers to perform the functions of immigration agents.  At the same time, the Executive Order threatens to withhold federal funds from “sanctuary jurisdictions” that prohibit state or local cooperation with immigration agents to the extent permitted by law.  That provision was recently put on hold by a federal court citing constitutional concerns.

Redirecting Enforcement Priorities

The Executive Order also resurrects the “Secure Communities Program,” which lays the groundwork for deporting significantly more immigrants compared prior years.  Whereas the Obama Administration focused immigration resources on removing gang members, drug traffickers, and other violent criminals, the new Administration is targeting any removable immigrant deemed a “risk” to public safety.

The last three months have already seen a dramatic uptick in enforcement actions taken against removable but otherwise law abiding immigrants.  Compared to the same period last year, the number of immigrants arrested by federal agents between January and March increased by a third.  Immigrants with no criminal record are being deported at twice the rate they were before the Executive Order went into effect, and in some jurisdictions, the rate is seven times higher.

Moreover, individuals who’ve had minor brushes with the law, but who might have been permitted to remain in the country previously, will more likely be deported now that Attorney General Jeff Sessions has directed federal prosecutors to initiate more federal prosecutions, and charge defendants with the highest eligible crime.  Immigrants who might have been released from custody as an exercise of prosecutorial discretion will now be charged with a crime and subject to removal under statutory provisions that align with the enforcement priorities set by the new Executive Order.

Finally, federal agents are making arrests in situations that are especially traumatizing, in and around “sensitive locations” that were previously considered out-of-bounds.  A victim of domestic violence was arrested in court after seeking a protective order against an abuser.  A father of four was arrested after dropping one daughter off at school, while another in the back seat watched as federal agents pulled him from the car.  Just this week agents entered an elementary school seeking to interrogate a nine-year old child.  In February, a critically ill mother of two was transferred to a detention facility after federal agents removed her in hand-cuffs from the hospital where she was receiving treatment for brain cancer.

A groundswell of criticism from Judges, victim advocates, and children’s rights defenders prompted Congressional Democrats to introduce a measure that would ban “sensitive location” arrests.  That bill is unlikely to pass, but federal agents who made these arrests were already violating an internal operating policy.  That policy was either not being enforced, or was not communicated through the rank and file, and the President’s Executive Order is a signal that federal agents will not be pressured to abide by it going forward.

Dreamers Left in Limbo

Despite its boundless reach, the Executive Order nonetheless leaves some immigrants in a state of limbo, wondering whether legal policies that protected them from deportation under the Obama Administration still apply.

This is the case with “Dreamers,” who are shielded from deportation under the Deferred Action for Childhood Arrivals program.  That program authorizes immigrants who were brought to the United States as children to live in the open without fear of being deported back to a country many have no memory of.  Upon registering with the government, Dreamers who meet certain requirements are authorized to work, attend college, obtain a driver’s license, and otherwise pursue their goals as fully integrated community members.  Because they come here at such a young age, Dreamers grow up alongside American peers, and in many cases have American siblings.

President Trump has so far wavered on promises he made during the campaign to dismantle DACA once he took office, and has aside a draft Executive Order that reportedly repeals the program.  Still, the Executive Order he did sign declares that the United States will not continue to “exempt classes or categories of removable aliens from potential enforcement.”  How this applies to Dreamers is unclear.  Meanwhile, ICE has publicly reaffirmed its authority to arrest any removable immigrant, including Dreamers, and under questionable circumstances has in fact detained a handful of Dreamers who are now facing deportation.

Know Your Rights

Every person in the United States is entitled to basic rights under the Constitution, even if they are in the country without authorization.  Immigrants who are approached by immigration agents or involved in removal proceedings should seek the assistance of a qualified attorney.  In the meantime, immigrants can learn about their rights and take steps to protect themselves through online resources published by the ACLU, the National Immigration Law Center, the Catholic Legal Immigration Network, and other advocacy groups.

These resources explain what to do when ICE agents come to your door, how to distinguish a *judicial warrant* from an *immigration warrant,* and why the difference between the two is so important.  They also provide guidance on how to prepare an “emergency planning checklist” to ensure that family members are provided for when a parent or caretaker is deported.  Additional information is also covered.

Moreover, earlier this year, New York became the first state in the country to provide free legal representation to immigrants who are detained pending removal.  Though immigrants facing deportation do not have a federal constitutional right to an attorney, the Liberty Defense Project will nonetheless provide low-income immigrants with the help of an attorney through a state-funded partnership with private organizations.  The initiative is a state-wide expansion of a similar program already operating in New York City, and three upstate immigration courts.

The program is likely to have a discernible impact on the lives of immigrants, and strengthen broader community foundations.  More than 4400 immigrant were deported following removal proceedings last year in New York alone, but studies have shown that the help of an attorney dramatically increases the likelihood that an immigrant will be allowed to remain in the United States.  In one example, only 3% of unrepresented immigrants avoided deportation, but the help of an attorney increased that likelihood by as much as 1000%.

The program is also expected to yield important social and economic benefits.  “No family should face a legal proceeding without an attorney,” lawmakers said, “and no family should be ripped apart because they couldn’t afford counsel.”  Keeping immigrant families together also reflects sound economic policy, law-makers argue, given the opportunity for “increased tax revenues and less need for families left behind to draw on the social safety net.”  Employers will also avoid the avoiding the loss of productivity that results when their employees are detained and deported, and the consequent need to identify and train replacement workers.

The legislature has allocated $10 million to the program which, in addition to legal defense, funds case management, job training, and English language classes.  The program goes into effect this Fall.

-Kathleen Bergin


Posted on May 16, 2017, in Uncategorized and tagged . Bookmark the permalink. Leave a comment.

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