Four hidden policy changes in Trump’s immigration memos

The headlines from President Donald Trump’s new immigration-enforcement memos are clear: in a sharp reversal of Obama-era policy, he wants to expand the number of undocumented immigrants targeted for deportation, hire thousands more immigration agents and restart a controversial program that automatically checked the immigration status of people in local jails.

Though draconian, the two memos released by the Department of Homeland Security on Tuesday were also expected: the executive orders Trump released five days after his inauguration had already outlined his broad crackdown on illegal immigration. The new guidance is just the "how-to" plan to make it happen.

But in the days since it was issued, immigration experts have been combing the documents to figure out the full impact — and buried in their 19 pages have found a number of small but important policy shifts that hadn't been seen before. “There are real and meaningful changes ahead,” Michael Neifach, a lawyer who held senior positions at DHS during the Bush administration, wrote in an email.

The new policies could affect everyone from undocumented immigrants to local police to U.S. soldiers. What will they look like? POLITICO spoke with nearly a dozen immigration experts on the right and left, many of whom previously have held senior roles at the department. They highlighted four under-the-radar but important new shifts buried in the DHS memos:

1. Limiting “parole”

Immigration officials have long been able to use an immigration policy called "parole" to create some flex in the system, cracking open the door for noncitizens who technically aren't supposed to enter the U.S., but who have some personal or political claim to leniency. The “wet-foot, dry-foot policy” that Obama ended in January used parole as the mechanism to allow Cuban immigrants to stay in the country if they made it onto U.S. soil. Another program, known as “parole in place,” allows close undocumented relatives of U.S. service members and veterans to apply for a green card without leaving the U.S., keeping military families together. Perhaps the most common use of parole, called “advance parole,” allows immigrants who are in the U.S. and applying to adjust their status — mainly applying for a green card — to travel abroad and return while their applications are pending.

To immigration critics, these broad policies amount to a systematic abuse of the parole system, which is supposed to be judged strictly on a case-by-case basis, rather than handed out to broad categories of immigrants. In what sounds like a slap at the Obama administration, one subsection of a memo says expanded use of parole “has contributed to a border security crisis, undermined the integrity of the immigration laws and the parole process, and created an incentive for additional illegal immigration.”

The new memo calls for parole to be used “sparingly” and directs the heads of the three main immigration agencies to issue regulations clarifying when parole can be used. How the immigration agencies will reform parole programs won’t be clear until they release final regulations; a DHS spokesperson did not respond to questions about the memos. But experts on both sides of the immigration debate believe the intent is to turn parole from an exemption that certain people can count on to an infrequent privilege — curtailing or eliminating many of these programs, including the “parole in place” program for U.S. soldiers' families.

2. Targeting people who help unaccompanied children

The new DHS memo tries to discourage unaccompanied children from making the dangerous trek to the United States by cracking down on the people who finance the journey — which often means their own families. The memo calls for the prosecution and/or deportation of any individual who “facilitates the illegal smuggling or trafficking of an alien child into the United States.” In other words, an undocumented mother who pays a smuggler to bring her children to the U.S. could now face prosecution. To many, this seems particularly heartless. “In many cases, people are fleeing for their lives, and it would be wrong to subject those helping to prosecution,” said Kerri Talbot, a former top immigration staffer for Sen. Robert Menendez.

While the Trump administration’s policy appears harsh, its goals aren’t especially unusual. In the fight against human trafficking, countries often look to attack the problem at the incentive level, discouraging would-be migrants from making illegal journeys in the first place. For instance, the European Union signed an agreement with Turkey last year to allow Greece to return migrants to Turkey, a policy designed to make the journey into the European Union far less appealing for the thousands of people using the migration route across the Aegean Sea.

When tens of thousands of unaccompanied children flooded across the U.S.-Mexico border in 2014, stressing the U.S. immigration system, the Obama administration used softer tactics to discourage such migration; Joe Biden, then vice president, even visited Central American countries to plead with parents to stop sending their children to the United States. By introducing the threat of prosecution for family members in the U.S. who help facilitate illegal border crossings, the Trump policy takes a much tougher line, but at heart, the goal is much the same.

3. Deputizing local law enforcement as immigration agents

One of the most controversial elements of Trump’s immigration policies has come with the bland bureaucratic name of 287(g), named for its corresponding section of immigration law, that allows local law enforcement agencies to sign agreements with immigration agencies to allow local police to act as immigration agents. The Obama administration ended the 287(g) program in 2012, after harsh criticism from activists and little engagement from law enforcement agencies.

Trump’s original executive order called for the DHS to revive the program. But the new memo goes a step further and actually expands it: Previously, local law enforcement agencies could only sign 287(g) agreements with Immigration and Customs Enforcement, which largely operates in the interior of the country. Now, they can also sign such agreements with Customs and Border Protection, which largely operates at ports of entry and along the border.

John Sandweg, former acting director of ICE under Obama, called the move “unprecedented.” Neifach, the Bush-era DHS official, also said the “change caught my eye.” What does this mean? It’s tough to know until ICE and CBP actually issue additional guidance. Experts said that local police would gain few additional authorities from partnering with CBP than they wouldn’t already have from partnering with ICE. But they could gain additional powers near the border, including boarding any vessel in search of undocumented immigrants and searching private lands within 25 miles of the border, said Neifach.

“I would envision that there will be some local sheriffs along the border who will dispatch deputies to do some patrol-like activities,” Sandweg said.

Local law enforcement agencies have been hesitant to sign 287(g) agreements in the past, worried that such deals could reduce trust with the local community. But those agencies that have signed agreements have gained far-reaching immigration powers, including apprehension, arrest, detention, and even the decision over whether to initiate removal proceedings. Experts said that careful oversight of the 287(g) program is critical to ensure that local police do not abuse it, and some are concerned that the expansion of the program to include CBP could lead to worse oversight and training. “Traditionally, ICE has been more sensitive to civil rights concerns and provided a higher degree of training about how to do operations and enforcement,” Sandweg said. “The oversight will change of how these agencies conduct enforcement under the agreement. That’ll be the biggest change.”

4. Expanding the use of expedited removal

Under U.S. law, undocumented immigrants are entitled to a hearing before being removed from the country — with an exception called “expedited removals” for immigrants who haven't been here long. The rationale for the policy is that such removals are acceptable on humanitarian grounds because the immigrant hasn’t established roots in the country. Such deportations avoid additional stress on the immigration court system, which already faces a backlog of more than 500,000 cases.

Though the law allows immigration agents to use expedited removal for any undocumented adult captured within two years of entering the U.S., the official DHS policy limited its use to those captured within 14 days of entering the country and within 100 miles of the border. The new memo says that DHS will expand the policy, although it does not say how.

Former officials under the Obama administration and immigration activists both pinpointed the change as meaningful, saying it could be used to deport immigrants who have been here long enough to become established community members. “That is significant,” said Noah Kroloff, a former senior DHS official under Obama. “[It] essentially means anyone who can’t demonstrate that they have been in the country for two years is potentially subject to expedited removal.”

According to data from Pew, the vast majority of undocumented immigrants have been in the U.S. more than two years. In 2014, just 14 percent had been here less than five years. Therefore, the expansion of expedited removal won’t suddenly put millions of immigrants at risk of deportation without a hearing. But it still is a significant broadening of a program that many activists already oppose — one that could stretch its reach from the border regions through every state in the U.S.

Danny Vinik

dvinik@politico.com