E.g., 10/19/2017
E.g., 10/19/2017

The Trump Administration at Six Months: A Sea Change in Immigration Enforcement

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The Trump Administration at Six Months: A Sea Change in Immigration Enforcement

U.S. Immigration and Customs Enforcement (ICE) agents take a man into custody.

Arrests by U.S. Immigration and Customs Enforcement (ICE) increased 38 percent in the first 100 days of the Trump administration, compared to the same period last year. (Photo: ICE)

Reaching its six-month mark in office on July 20, the Trump administration is making good on Donald Trump’s campaign promises to ratchet up immigration enforcement. Acting swiftly during his early days in office, the president issued executive orders to further stiffen enforcement along the border and cast a wider net in the U.S. interior. Those orders, accompanied by agency memoranda that change longstanding policy in a range of areas, have resulted in stark shifts in immigration enforcement within U.S. communities.

During the final years of the Obama administration, just 13 percent of the estimated 11 million unauthorized immigrants were considered a priority for deportation because of a disqualifying criminal conviction, recent removal order, or recent illegal entry, according to Migration Policy Institute estimates. The Trump administration expanded the pool dramatically with its executive order on interior enforcement, and Department of Homeland Security (DHS) officials have made clear that all unauthorized immigrants have broken the law and are, therefore, subject to removal.

While U.S. Immigration and Customs Enforcement (ICE) still targets specific individuals for arrest, often based on criminal activity, the agency also takes into custody unauthorized immigrants incidentally encountered during these operations. Those in the country illegally “should be uncomfortable,” the acting ICE Director said recently. “You should look over your shoulder.”

This represents a sea change in enforcement thinking and practice. The move from a tight focus on explicit priorities to enforcement where almost any unauthorized immigrant encountered by immigration officials can be removed is altering behaviors and generating deep anxiety within immigrant communities, both unauthorized and legal. At the same time, the available data suggest that the actual increases in immigration arrests during the Trump administration’s first six months are not as dramatic as its executive orders and other policy pronouncements would indicate—or as the anxiety level in immigrant communities might suggest.

Expanding the Enforcement Net: Executive Actions

The speed and scope of the President’s executive orders offered the earliest indication that he intended for his administration to make sweeping changes to immigration enforcement. Trump’s first two executive orders on immigration, signed five days into his presidency, focused on enforcement at the border and in the U.S. interior. Among key provisions of the border one: Ordering construction of a wall and more detention facilities, deploying immigration judges and asylum officers to border facilities, and directing DHS to hire 5,000 additional Border Patrol agents.

The second executive order focused mainly on interior enforcement, directing the hiring of 10,000 new ICE officers, an increase in federal-local enforcement partnerships, limits on federal grants to so-called sanctuary jurisdictions, reinstatement of the Secure Communities information-sharing program, and, most importantly, new enforcement priorities.

In 2014, the Obama administration significantly narrowed the focus of its enforcement efforts, identifying as top priorities for removal those posing threats to national security and public safety, felons or significant misdemeanants, recent arrivals, and those who had final orders of removal issued in 2014 or later. It also encouraged ICE attorneys to exercise prosecutorial discretion in various ways. They could do this, for example, by closing court cases in certain circumstances, including when the noncitizen fell outside the priority categories for enforcement and had extensive ties to the United States.

The Trump administration has fundamentally recast those enforcement guidelines, and has virtually eliminated the practice of using discretion to close cases. (ICE agreed to close fewer than 100 cases monthly in the first six months of the Trump administration, compared to the monthly average of 2,400 during the second half of the Obama administration, according to the Transactional Records Access Clearinghouse). Although individuals convicted of criminal offenses remain an enforcement priority, so are those charged with a criminal offense but not yet convicted; those who have engaged in behavior that an immigration officer believes could result in a chargeable offense; anyone who has fraudulently accessed public benefits or committed fraud in an immigration application; noncitizens subject to a final order of removal, however old that order may be; and, perhaps most importantly, anyone who could be considered a public safety threat in the eyes of an immigration officer.

Unlawful presence is a civil violation punishable by removal. However, those in the country illegally are now viewed through the lens of criminality even if they have not committed any crime. ICE Acting Director Thomas Homan put it succinctly at a House Appropriations subcommittee hearing in June: “Those who choose to enter the country illegally, which is a federal crime, or to overstay their visa, have knowingly chosen to break the law.” Though illegal entry is a crime, overstaying a visa is not.

This is the first time that the federal government has issued such broad priorities for arrest and deportation, even though unwritten policies in the early years of the Obama administration allowed ICE officers just as broad discretion in their enforcement activities. Indeed, though the number of arrests has risen significantly in the first few months of the Trump administration, the pace of arrests is still lower than at the peak during the early Obama years. The substantial changes in enforcement priorities that reduced arrests did not occur until toward the end of the Obama administration.

Implementation of the New Enforcement Policies

The results of this less-targeted focus are already apparent: Significantly more noncriminals are being arrested. In Trump’s first 100 days, ICE made 41,318 arrests, a 38 percent increase over the same period in 2016. Of these, 74 percent had a criminal conviction—indicating some continuity with the prior administration. Arrests of those with criminal convictions, however, rose by less than 20 percent over the same period last year. On the other hand, 26 percent of arrested individuals (10,845) had no criminal convictions, as compared with 14 percent (4,242 individuals) during the same period a year earlier. Thus while the total number of arrests rose significantly, the number of noncriminal arrests more than doubled.

Indeed, in 22 out of 25 ICE regional offices, the number of noncriminal arrests between January 20 and April 29 had increased at a greater rate than the number of criminal arrests, compared to the same period last year.

It is also worth noting that despite the increase in arrests early in the Trump administration, on pace to hit about 150,000 this fiscal year if current trends continue, ICE was arresting more than 250,000 people annually during 2008 through 2011 (the last year of the Bush administration and the first three years of the Obama one).

Differing Enforcement by Region

The expanded focus on ordinary status violators, as opposed to criminals or other national security or public safety priorities, varies by ICE region. In the first 100 days of the Trump administration, the regional offices in Philadelphia (covering Delaware, Pennsylvania, and West Virginia), Atlanta (spanning Georgia, North Carolina, and South Carolina), and Miami (covering Florida, Puerto Rico, and the U.S. Virgin Islands) saw the biggest increases in the numbers of noncriminals arrested compared to the same period in 2016: 529 percent, 460 percent, and 400 percent, respectively.

While these three ICE regions had the most dramatic hikes, 19 of the 25 regions recorded at least double the number of noncriminal arrests as during the same period in 2016.

Another way of looking at the disparity in priorities across jurisdictions is evidenced by the fact that although two ICE regions in California—Los Angeles and San Francisco—saw overall increases in the number of noncriminal arrests, they arrested the smallest shares of noncriminals during the Trump administration’s first 100 days. Ten percent of arrests conducted by the Los Angeles office (covering the Los Angeles metropolitan area and the Central Coast) were of noncriminals, as were 15 percent of those conducted by the San Francisco office (covering Northern California, Hawaii, Guam, and Saipan).

This limited share in the two California regions is not surprising, given the California TRUST Act, which since 2014 has limited cooperation between law enforcement agencies and ICE by prohibiting the exchange of information about or transfer into custody of individuals with minor criminal violations. Many California jurisdictions, such as San Francisco and Oakland, have even stricter local policies regarding ICE cooperation.

New Focus on Noncitizens with Final Orders of Removal

The prioritization of noncitizens with final orders of removal, no matter how long ago those orders were issued, has emerged as a critical element of the new enforcement activities. This is a major reversal of earlier policy, when only those with final orders issued after December 2013 were a high priority for enforcement.

The Obama administration policy also provided for the exercise of prosecutorial discretion, even for those with recent orders, if “in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.” Thus, unauthorized immigrants with final orders but without criminal convictions who had significant ties to the United States, such as U.S.-citizen children or businesses, were permitted to stay but were required to check in periodically with ICE, as their removal order remained active but not enforced.

Under revised DHS policy, opportunities for immigration officers to use discretion have narrowed significantly, with officials noting that noncitizens with final orders of removal have already received due process in court. According to ICE, some 969,000 noncitizens with final orders of removal have not departed.

The focus on final orders has led to an increase in noncitizens being arrested at their check-ins with ICE. Check-ins are typically required of those who have a final order of removal but have been granted prosecutorial discretion and released from ICE custody under an order of supervision.

Ironically, this enforcement shift has entangled a group of immigrants who, at least rhetorically, the President promised to protect during his campaign: Christian minorities from predominantly non-Christian nations. In particular, a number of Christians from Iraq and Indonesia with final removal orders have been arrested and detained. Both countries have only recently begun accepting the return of their nationals deported from the United States. While several Indonesians who entered the United States fleeing religious persecution have been deported, a federal judge has prevented the removal of arrested Iraqis—mostly Chaldean Catholics, with some Kurds and Muslims—through July 24.

A More Aggressive Arrest Strategy

Immigrant-rights advocates and local officials have also complained that people are being arrested in courthouses and near schools.

Under prior administrations, ICE adhered to policies of not conducting enforcement actions at sensitive locations, such as schools, hospitals, places of worship, funerals, weddings, and public demonstrations. So far during the Trump administration, ICE has maintained this policy and has not been arresting people in schools, hospitals, or other sensitive locations, though some arrests have been reported near such locations. ICE did not include courthouses in the sensitive locations policy even during the Obama administration, but did state that it would conduct enforcement actions at courthouses only in cases of national security and public safety threats, seeking to do so outside the courthouse if possible.

Following recent courthouse arrests, ICE has argued that conducting enforcement actions at courthouses is both more cost-effective and safer than arresting people at their homes and workplaces. Moreover, Homeland Security Secretary John Kelly has said courthouse arrests are necessary when state and local policies prevent ICE from making arrests in secure jail settings, as is the case in so-called sanctuary jurisdictions.

The chief justices of several state Supreme Courts, including California, New Jersey, and Washington, as well as Denver city officials, have written to ICE to request that agents refrain from operating within courthouses whenever possible. They cite the chilling effect these arrests could have on immigrants attending court hearings or serving as witnesses. Court officials in Massachusetts also met with ICE agents over these concerns. However, ICE has continued to make courthouse arrests in these states.

Changes in Immigrant Behavior

Shifting enforcement priorities and strategies have also led to significant changes in behavior among unauthorized immigrants and would-be border crossers, as they come to terms with the reality of new enforcement patterns in the Trump administration as well as perceived threats to themselves and their communities.

At the Border

Following the presidential inauguration on January 20, apprehensions at the Southwest border changed dramatically. Overall, Southwest border apprehensions have decreased 48 percent between January and June this year. They fell during the winter and early spring months, at a time when they usually rise. Total apprehensions by U.S. Customs and Border Protection (CBP) dropped by almost 20,000 between January and February, and then by nearly 7,000 between February and March. This represents the first time in 17 years that apprehensions decreased in February or March. Apprehensions reached a low point in April: 15,800, compared to 48,500 in April 2016. Since then, they have begun to rise slightly, hitting 21,700 in June, still about 24,000 fewer than in the same month in 2016. The total number of apprehensions in this period—140,000—represents a 48 percent decrease from the same period a year earlier.

Apprehensions of unaccompanied minors and “family units” (the Border Patrol’s terminology for a parent or guardian traveling with a minor child) have also plummeted. Increased crossings by the two groups have accounted for much of the uptick in border apprehensions in recent years. In the first six months of 2017, apprehensions of unaccompanied minors dropped 54 percent, and those of family units fell 37 percent. These children and families primarily come from Central America’s Northern Triangle: El Salvador, Guatemala, and Honduras.

Between May and June 2017, however, Border Patrol apprehensions of unaccompanied minors increased by about one-third, and almost half for family units—even as total apprehensions of would-be border crossers increased 11 percent.

Mexico, typically the gateway for migrants from Northern Triangle countries heading to the United States, has seen drops in apprehensions of unauthorized crossers from these countries. From February to May, Mexican authorities apprehended 3,900 Salvadorans, compared to 11,400 during the same period last year; 9,300 Guatemalans, compared to 20,800 a year earlier; and 9,000 Hondurans, compared to 18,600. That is a decrease of more than half for both Guatemalans and Hondurans, and a two-thirds reduction for Salvadorans.

In U.S. Immigrant Communities

Reacting to stepped-up enforcement, some unauthorized immigrants have chosen to withdraw from or minimize their exposure in public spaces, for example by neglecting to seek health care or, in the most extreme cases, taking sanctuary in houses of worship to avoid deportation.

In addition, declines in crime reporting have been noted in some of the country’s largest immigrant communities. In the first three months of 2017, sexual assault complaints dropped 25 percent among the Los Angeles Latino population, compared to the same period last year, and domestic violence reports fell 10 percent. In Houston, over the same time period, reports of rape in the Latino community decreased 43 percent when compared to the same time in 2016; meanwhile, reports of rape increased 8 percent in the non-Latino community. In Denver, crime reporting by Latinos fell 12 percent, even as it rose 3.6 percent among non-Latinos.

Law enforcement officials and service providers have suggested that declines in the willingness of Latinos to report crimes is rooted in fear that doing so will reveal to ICE the unauthorized status of complainants and witnesses or will expose relatives who are unauthorized. Recent courthouse arrests by ICE have amplified these fears.

Service providers for survivors of domestic violence have reported similar dropoffs in Latinos seeking services. A survey of 700 domestic violence advocates and legal service providers across the country by the Tahirih Justice Center found that 62 percent noticed clients expressing more concern about immigration status. One domestic violence shelter in Orange County, California reported that while in the past about half of its 70 new monthly cases came from unauthorized immigrants, the number had fallen to fewer than five per month in the first three months of the Trump administration.

Unauthorized immigrants have also shied away from enrolling in government benefit programs for which they may be eligible. According to the National WIC Association, about one-quarter of the 90 local agencies that manage the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) have reported unauthorized immigrant clients skipping appointments and declining to receive benefits.

People’s concerns about being removed are reflected in an increased demand for attorneys. The Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA), for example, has seen its new clients surge from roughly 20 per day before Trump took office to 100 in recent months. The University of California Immigrant Legal Services Center caseload doubled during the 2016-17 academic year from a year earlier.

Congress Also Eager to Act

Congress has geared up as well. The House passed two bills that would further expand interior immigration enforcement: Kate’s Law and the No Sanctuary for Criminals Act.

Kate’s Law, which stalled in Congress in 2015, would increase penalties for unauthorized immigrants with certain criminal convictions who return to the United States after previously being deported. The No Sanctuary for Criminals Act would, among other measures, bar states or localities from prohibiting employee cooperation with federal immigration authorities and would make jurisdictions ineligible for certain federal law enforcement grants if they enact such prohibitions. Currently, states and localities are restricted only from prohibiting communication about an individual’s immigration status with ICE. These bills, which Trump and senior DHS officials have championed, would increase the population of detained immigrants and the population of removable noncitizens to which ICE has access.

Brushing Up Against Resource Limitations?

While promising to prioritize enforcement against criminals and threats to public safety, the Trump administration has ramped up arrests of non-criminals and made clear it intends to cast a far wider net regarding those considered a priority for removal. However, the administration may soon have to confront the reality of resource limitations. While the administration is seeking billions of dollars for new immigration enforcement personnel, detention facilities, and the construction of a border wall, it remains to be seen if Congress will acquiesce. Without a new infusion of resources, the Trump administration is unlikely to be able to arrest, detain, and deport significantly larger numbers of unauthorized immigrants than during the peak Obama years, and in the end will be left with a choice between prioritizing those with criminal convictions versus a much larger population of those without.

National Policy Beat In Brief

Supreme Court Partially Lifts Injunctions Blocking Implementation of Revised Travel Ban. On June 26, the Supreme Court partially lifted appellate court injunctions that had temporarily barred implementation of key aspects of a revised executive order signed by President Donald Trump limiting travel from several majority-Muslim countries and placing new limits on the U.S. refugee resettlement program.

The justices’ decision came as the court granted the government’s petition to review two appellate court decisions that had stalled the administration’s high-profile executive order. The court in the fall will hear arguments against the Fourth U.S. Circuit Court of Appeals’ decision in International Refugee Assistance Project (IRAP) v. Trump, in which the court upheld a lower court’s injunction on implementing the ban on issuing new visas to nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. The Supreme Court will also hear arguments against the Ninth U.S. Circuit Court of Appeals’ decision in Hawaii v. Trump, in which the appellate judges upheld an injunction on the new visa ban, the suspension of the refugee program, and the 50,000 refugee cap for fiscal year (FY) 2017.

Under the Supreme Court order, individuals under the scope of the injunctions who have a “bona fide relationship” with a person or entity in the United States will be permitted to enter. The justices provided little clarity on what constitutes such a relationship, saying only that it would have to be either a close familial relationship or a relationship with an entity that was “formal, documented, and formed in the ordinary course.” State Department guidance specified that a close familial relationship includes a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling (whether whole or half), and including step relationships. The guidance also stated that applicants for almost every category of nonimmigrant visa—besides tourist and visiting business visas, transit visas, crewmember visas, and foreign media visas—are exempt from the executive order’s ban on new visa issuances because a bona fide relationship is inherent in those nonimmigrant categories.

The State Department guidance, which tracks the family definitions used in the Immigration and Nationality Act, was criticized due to its exclusion of relatives such as grandparents, aunts, and uncles from its definition of “close familial relationship,” and its decision that a refugee relationship with a refugee resettlement agency does not constitute a bona fide relationship with a U.S. entity. After the guidance was issued, the state of Hawaii filed a motion asking U.S. District Judge Derrick Watson to modify his March 29 preliminary injunction to expand what constitutes close familial relations. The state also asked the judge to determine that a relationship between a refugee and a U.S. resettlement agency is considered a bona fide relationship with a U.S. entity. Such a ruling would essentially allow all refugees approved for admission to bypass both the 50,000 cap on refugee admissions, which was recently met, and the 120-day pause in the resettlement program that the Supreme Court allowed to take effect. The district judge agreed to modify his injunction per the state’s request. On July 14, the Justice Department appealed this decision to the Supreme Court.

DHS Plans to Rescind International Entrepreneur Rule. The Department of Homeland Security (DHS) is delaying and ultimately planning to rescind the International Entrepreneur Rule, which was set to take effect on July 17. The rule would have allowed DHS to parole into the country for 30 months foreign entrepreneurs who had recently formed a start-up and had secured substantial investment. The Obama administration estimated that about 3,000 individuals could benefit annually under this rule. Due to the provisions in a January 25 executive order signed by President Trump, DHS can now extend parole only on a case-by-case basis, for urgent humanitarian reasons or a significant public benefit. As a result, DHS is delaying the implementation of the rule until March 14, 2018. In the months in between, DHS will seek comments on its proposal to rescind the rule pursuant to the terms of the executive order.

Ninth Circuit Affirms that Detained Children Are Entitled to Bond Hearings. A three-judge panel of the Ninth U.S. Circuit Court of Appeals unanimously ruled on July 5 that unaccompanied minors in immigration detention are entitled to bond hearings before an immigration judge, as required by the 1997 Flores settlement. The appellate panel’s opinion upholds a district court decision. The government had argued that the 2002 Homeland Security Act, which transferred responsibility for unaccompanied minors to the Office of Refugee Resettlement in the Department of Health and Human Services, and the 2008 Trafficking Victims Protection Reauthorization Act, which provides further statutory standards for the care of these children, terminated the Flores settlement because neither law mentioned bond hearings. The appellate judges found that “not a single word in either statute indicates that Congress intended to supersede, terminate, or take away any right enjoyed by unaccompanied minors at the time of the acts’ passage.”

ICE Begins Targeting Parents Who Paid for Children to Be Smuggled to the United States. U.S. Immigration and Customs Enforcement (ICE) has begun arresting and detaining unauthorized immigrant parents in the United States who paid smugglers to bring their children to the country, complying with instructions in a February memorandum by Homeland Security Secretary John Kelly. The memo directed that ICE and U.S. Customs and Border Protection (CBP) conduct enforcement actions against these parents so as to discourage smuggling and trafficking of children, including but not limited to placing the parents into removal proceedings or referring them for criminal prosecution. CBP agents have reportedly begun sharing parents’ contact information, which they receive from children, with ICE.

State Attorneys General Demand that Trump Administration End DACA. The Attorneys General of ten states—Arkansas, Alabama, Idaho, Kansas, Louisiana, Nebraska, South Carolina, Tennessee, Texas, and West Virginia—as well as the governor of Idaho are demanding that the Trump administration phase out the Deferred Action for Childhood Arrivals (DACA) program. The states represented by these officials are among the 26 plaintiff states in the lawsuit that challenged the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and expanded DACA program that President Obama announced in November 2014. In a June 29 letter to U.S. Attorney General Jeff Sessions, the officials said that if the Trump administration did not rescind the 2012 memo that created DACA and stop approving DACA applications by September 5, 2017, they would amend their original complaint against the DAPA program and DACA expansion to challenge the entire DACA program. During his presidential campaign, Trump promised to immediately rescind DACA, but postelection has promised to show “heart” to DACA beneficiaries.

State Policy Beat In Brief

U.S. Citizen Sues Miami-Dade County for Holding Him on ICE Detainer. Lawyers for a U.S. citizen living in Miami, Garland Creedle, have sued Miami-Dade County and its mayor, Carlos Giménez, arguing that the county violated his Fourth Amendment right against unlawful seizure by holding him on an ICE detainer—a request to hold an individual past his release date in order for ICE to take custody of him—even though he had posted bail. From 2013 to the beginning of 2017, a Miami-Dade policy instructed local law enforcement agencies not to honor ICE detainers unless the federal government reimbursed the county for costs incurred in detaining people for the extra time. Because the federal government did not reimburse the county, it in effect did not honor detainers. However, after Trump signed an executive order in January threatening to withhold funds from unspecified, undefined sanctuary jurisdictions, Giménez became the first mayor to reverse a detainer policy and directed local law enforcement to honor ICE detainers. The lawsuit, filed in U.S. district court, asks that the court declare Giménez’s new policy invalid and rule that Creedle’s detention was a Fourth Amendment violation.

Nashville Bill Limiting Cooperation with ICE Dies after City Attorney Calls It Unenforceable. Two ordinances that had gathered momentum in Nashville’s Metro Council were withdrawn by their sponsors. One ordinance would have prohibited local law enforcement from complying with ICE detainers unless they were accompanied by a judicial warrant and would have prohibited the city’s employees from asking about a person’s immigration status; the other would have terminated an agreement with the U.S. Marshals Service to house immigrant detainees in the city’s jail. The city’s attorney, however, issued a legal opinion saying that under state law, the city council cannot prohibit the sheriff, who runs the jails and is a state constitutional officer, from cooperating with federal authorities.