In two memos dated Feb. 20 and posted to the Department of Homeland Security website, Secretary John Kelly said the government will target any unauthorized immigrant suspected of, charged with or convicted of a criminal offense – and not limit enforcement to violent criminals and unlawful border crossers, as has been the case in recent years.
“Criminal aliens have demonstrated their disregard for the rule of law and pose a threat to persons residing in the United States,” Kelly said in the memo. Crossing the border illegally itself is a federal crime. Overstaying a visa is a civil offense.
The memo also prioritizes those who have misrepresented themselves to a government agency, abused public benefits programs or are judged by immigration authorities to pose a risk to public safety or national security.
“It could put millions of undocumented people here at risk,” said Maureen Meyer, senior associate for migrant rights at the Washington Office on Latin America, a think tank that advocates for immigrant rights. “It will likely separate families, particularly families of mixed immigration status. Anybody here without the right papers could be fair game.”
A spokesman for Gov. Susana Martinez, a Republican, said the governor “has always said we need to strengthen our border, and that includes enforcing federal law.”
Sen. Tom Udall, D-N.M., slammed the new guidelines, saying they “amount to a plan to begin mass deportations” and are “unrealistic, inhumane, bad for the economy and an extremely inefficient use of already thin resources.”
Exempted from the new enforcement priorities are those young immigrants known as “dreamers” who were protected by an executive order by then-President Barack Obama known as the Deferred Action for Childhood Arrivals, or DACA.
More than 10,500 New Mexicans are protected under the program, and nearly 750,000 immigrants are covered by DACA nationwide.
President Donald Trump vowed to make tougher immigration enforcement a keystone of his administration. Kelly’s two memos serve as practical guidelines to the president’s recent executive orders on border security and immigration.
DHS officials, speaking anonymously in a call with reporters, sought to calm fears on Tuesday.
“We do not need a sense of panic in the communities,” an official told The Washington Post. “We do not have the personnel, time or resources to go into communities and round up people and do all kinds of mass throwing folks on buses. This is not intended to produce mass roundups, mass deportations.”
But Vicki Gaubeca, executive director of the ACLU’s Regional Center for Border Rights in Las Cruces, said, “I’m not sure how they can say that and allay the concerns of the public. Because the potential for that is there (in the new guidance). What kind of protections are they putting in place, instead of just words? If they want to allay fears, they should be very clear what those protections are.”
In a provision that is likely to generate significant debate from Santa Fe to Las Cruces, Kelly directed federal agencies to partner with local law enforcement to authorize “qualified officers … to perform the functions of an immigration officer.”
Counties statewide have for several years strictly limited local law enforcement’s ability to work with federal immigration authorities, in part because of legal liabilities associated with doing so as well as to encourage undocumented residents to report crimes.
Police, sheriff’s deputies and jails in New Mexico often cooperate with U.S. Immigration and Customs Enforcement concerning individuals who are felons or are charged with violent or serious crimes, including drug trafficking. But most local agencies restrict their officers from inquiring about immigration status during routine stops.
Another provision in the memos authorizes the use of “expedited removal” nationwide – a practice previously restricted to a zone within 100 miles of the border, which doesn’t include Albuquerque.
Under expedited removal, immigration officers may remove “without further hearing or review” any immigrant who they determine to be “inadmissable” under U.S. law.
U.S. Border Patrol apprehended more than 408,000 unlawful immigrants near the Southwest border in fiscal 2016, up 23 percent from the prior year but well below the million-plus apprehensions of a decade ago.
Illegal immigration, especially from Mexico, has plummeted over the past 10 years.
More often, migrants are arriving at the Southwest border from Central America, Brazil and other countries. Many of them are fleeing extreme violence and poverty and have made claims of “credible fear,” a precursor to applying for asylum.
The memos keep policies in place to interview recent arrivals for “credible fear” but also tighten guidance on who can be released into the country while awaiting a court hearing. Most immigrants will be detained, according to the memos.
The memos state that “lawful detention of aliens … is the most efficient means by which to enforce the immigration laws at our borders.”
“Policies that facilitate the release of removable aliens apprehended at and between the ports of entry, which allow them to abscond and fail to appear at their removal hearings, undermine the border security mission,” the memo says. “Such policies, collectively referred to as ‘catch-and-release,’ shall end.”
New Mexico has at least three detention facilities specifically designated to hold undocumented immigrants, one each in Torrance, Cibola and Otero counties. Together the facilities include at least 2,000 beds.
Additionally, the U.S. Marshals contract on behalf of other federal agencies for detention space in Hidalgo, Luna and Doña Ana county jails on the border; many detainees there are recent border crossers who are charged with felony illegal entry or re-entry and are awaiting sentencing at federal court in Las Cruces.
“The message has been made clear that the new policies are detention-centric,” said Olsi Vrapi, an Albuquerque immigration attorney. “We are seeing in practice already that our clients who would have gotten bond three weeks ago are now being denied bond.”
The memo hinges the expanded detention authority on the government’s establishing new detention centers and a plan with the Department of Justice to “surge the deployment of immigration judges and asylum officers.”
The nation’s immigration courts are overwhelmed with a backlog of more than 534,000 pending cases, according to the memo.
Supporting the effort
“I think that the restoration of serious no-nonsense immigration enforcement is the only thing that is going to make it possible for immigration reform in the future,” said Jessica Vaughan, director for policy studies at the Center for Immigration Studies, a think tank that advocates stricter immigration enforcement. “The main reason that amnesty proposals failed in the past is because people didn’t have any faith that the laws were going to be enforced.”
Deportations by ICE reached a peak during the Obama administration, with nearly 410,000 in fiscal 2008.
Nearly 3 million unauthorized immigrants were removed by ICE during the Obama years, although the pace slowed considerably during the last two years of his administration.
To facilitate increased enforcement, Kelly’s memos authorize ICE to hire 10,000 new officers and Border Patrol to hire 5,000 new agents.
Kelly also echoes Trump’s executive order by calling for the immediate “planning, design, construction and maintenance of a wall” at the southern border.
The memos do not specify how much implementing the new policies will cost or how DHS intends to pay for its expanded enforcement plans.