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Government Security News February 2017 Digital Edition

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Hot Topics: More opinions on Immigration Abandoning priorities will make immigration enforcement work much harder Photo: t3hWIT By Mary Giovagnoli The Trump administration ensured this week that its immigration enforcement policies will be a chaotic affair marked by mistakes, civil rights violations and overzealous enforcement. They did this by outlining measures that they claim simply return power to immigration agents to do their jobs—measures such as authorizing the hiring of thousands more border and interior enforcement officers, eliminating targeted priorities for removal, and creating an aggressive plan to deputize local law enforcement. Significantly, the administration also rescinded virtually all guidance on the use of prosecutorial discretion. In the short-term, this dramatic rescission of guidance leaves officers with no framework for decision-making, except the vague idea that their mission is to deport as many unauthorized immigrants as possible. In the long-term, it turns the authority to arrest, detain, and deport individuals into a type of unchecked power that once unleashed is hard to pull back and is bound to create chaos. One of the defining measures of the Obama administration’s Priority Enforcement Program was discretion. Over the years, officers were given a set of enforcement priorities that emphasized the removal of persons convicted of serious crimes, or who were national security threats, or who had recently crossed the border. The memos categorized enforcement priorities not to 32 keep officers from doing their job, but to ensure that officers had guidance that gave them a framework for using their resources and making good choices about individual cases based on more than just the authority to arrest and detain someone. The November 2014 memos issued by former Secretary Jeh Johnson emphasized that even within these priority categories there were reasons why an individual case might merit a decision to decline to prosecute. These memos and others emphasized the favorable exercise of discretion—in other words, the need to triage cases, starting first with the nature of the violation (is this person a convicted killer or a jaywalker?) and then walking progressively through other factors such as whether this person was a victim of domestic abuse, or an asylum seeker, or had U.S. citizen children. The goal was to ensure that limited resources were used to remove those who posed a threat to safety or securi- More on page 42

“Expedited removal” of noncitizens called for in President’s January 25 executive order President Trump’s January 25, 2017, executive order directs the Department of Homeland Security (DHS) to dramatically expand the use of “expedited removal.” Created in 1996, expedited removal is a process by which low-level immigration officers can quickly deport certain noncitizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border. One of the major problems with expedited removal is that the immigration officer making the decision virtually has unchecked authority. Individuals subject to expedited removal rarely see the inside of a courtroom because they are not afforded a regular immigration court hearing before a judge. In essence, the immigration officer serves both as prosecutor and judge. Further, given the speed at which the process takes place, there is rarely an opportunity to collect evidence or consult with an attorney, family member, or friend before the decision is made. Such a truncated process means there is a greater chance that persons are being erroneously deported from the United States, potentially to imminent harm or death. Moreover, individuals who otherwise might qualify for deportation relief if they could defend themselves in immigration court are unjustly deprived of any opportunity to do so. Yet expedited removal has been 33 increasingly applied in recent years; 44 percent of all removals from the United States were conducted through expedited removal in Fiscal Year (FY) 2013, the most recent government data available. A dramatic expansion, as directed by President Trump, might result in thousands of additional deportations without due process. What the Law Says “Expedited removal” refers to the legal authority given to even lowlevel immigration officers to order the deportation of some non-U.S. citizens without any of the dueprocess protections granted to most other people—such as the right to an attorney and to a hearing before a judge. The Illegal Immigration and Immigrant Responsibility Act of 1996 created expedited removal, but the federal government subsequently expanded it significantly. As it now stands, immigration officers can summarily order the removal of nearly any foreign national