Thursday, February 23, 2017

The Trump Administration Seeks to Increase Enforcement of our Broken Immigration Laws

President Trump's executive order on immigration, issued on January 27, 2017, blocked travel from seven Muslim countries, suspended our refugee program, and sought to reform our refugee program to prioritize Christians over Muslims. Implementation of the order was halted by the courts, and the Trump administration, it appears, has opted to craft a new order instead of pursuing further appeals.

Things are not likely to get kinder or gentler anytime soon.

The Kelly Memoranda

Over the weekend, Secretary of Homeland Security, John Kelly, signed two memoranda that contain sweeping new guidelines directing federal authorities to more aggressively detain and deport illegal immigrants at the border and inside the country.

"Department personnel shall faithfully execute the immigration laws of the United States against all removable aliens," says the memo.  That covers 11 million undocumented residents of the U.S., many of whom have been here for decades. Excluded--for now-- are President Obama's DACA program (directing prosecutorial discretion not to enforce the immigration laws against individuals who came to the United States as children, and President Obama's DAPA program with respect to certain individuals who are parents of U.S. citizens or permanent residents).

Secretary Kelly has directed the Department to expeditiously hire 10,000 ICE enforcement officers (for enforcement in the interior of the country) and to take enforcement actions commensurate with available resources. In order to increase police resources, the Department is directed to enlist local law enforcement personnel as much as possible.

The memo directs that all resources currently used to advocate on behalf of the undocumented community, and all outreach programs, be terminated and the resources redirected to work with "victims of crime" and (presumably?) citizen informants.

ICE is directed to no longer afford privacy act protection to undocumented individuals. Effectively this means that any information or data that enters the system, which must be maintained private for citizens and permanent residents, will be shared across federal agencies.

The memo calls for regulations to collect fines and penalties from undocumented workers "and those who facilitate their unlawful presence in the United States."

By a separate memorandum, Secretary Kelly directs the Department to expand its detention facilities and to hire 5,000 additional CBP border patrol agents.

The Department is directed to collect data and to engage in propaganda publicizing and emphasizing anyone convicted of crimes.

No Significant Immigration Reform Since 1986

The last major immigration legislation in 1986 granted amnesty, and a path to citizenship for some undocumented workers who had been in the U.S. continuously since 1982.  The legislation criminalized the knowing hiring of illegal workers, but imposed no duty to check on employee status.

After implementation of the amnesty program in the 1986 legislation, there remained an illegal population of at least 2 million.  Thereafter illegal immigration increased substantially until it stabilized in 2008 at 12 million, and thereafter slightly decreased.



The 1986 law sought to secure the border with Mexico by authorizing additional border fencing, surveillance technology, and increased CBP staffing. As the net decrease in undocumented workers after the 2008 Greater Recession demonstrates, illegal immigration responds to market demand. [Changes in the Mexican economy and increased enforcement from the mid-1990's on also played a role] The U.S. farming, construction, restaurant, and hospitality industries had a great need for workers for which there was not a ready domestic supply, and immigration from Latin America filled the need. The 1986 legislation was defective in that it failed to establish a legal mechanism to fill this need.

By failing to provide a reasonable mechanism to accommodate the immigration needs of the economy, we have caused a sizable undocumented workforce to build up in our country. This workforce is more industrious than Americans in general (they are employed at higher rates than U.S. citizens and permanent residents), and immigrants in general are more law abiding than Americans in general.

This community exists because Congress has been gridlocked on the issue of immigration for the past 30 years. The result is a cruel situation where 11 million workers and their families, two thirds of whom have been here for more than 10 years, lack proper documentation, don't receive their fair share of social benefits, and are living in a state of peril and uncertainty.

We are about to make their lives worse. Shame on us.

Watch this five minute story of Marisol Conde-Hernandez and here family, first published in The Atlantic in May 2016.

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