The Kelly memo, on the other hand, “talks about arrest, not just convictions, and doesn’t really seem to limit the possible removals to those convicted of serious crimes or those arrested for serious crimes,” Johnson said. This represents a large departure from the last administration’s priorities.
“It’s really difficult to even call them priorities at this point,” said Santa Clara Law School professor Pratheepan Gulasekaram on KQED’s Forum program.
Sanctuary Cities
Johnson predicts that some state and local law enforcement officials will resist cooperation with immigration authorities, but said there are limits to their ability to prevent Immigration and Customs Enforcement agents from detaining immigrants. He also believes that the Trump administration is likely to make good on the president's threats to punish sanctuary cities, in California and elsewhere, by withholding federal funds.
Another change outlined in the memos is the removal of Privacy Act rights from people who are neither citizens nor lawful permanent residents. According to Gulasekaram, this would allow the Department of Homeland Security to publicize any crimes committed by immigrants. He believes Trump will use this information to turn public opinion against sanctuary cities and states like California, whose lawmakers have made public statements of support for the immigrant community.
Expedited Removal
Expedited removal was used under the Obama administration, but was limited to people caught within 100 miles of the border and within two weeks of their arrival in the country. The new DHS guidelines have dramatically expanded the criteria, however, allowing the tool to be used throughout the country, and for as long as two years after a noncitizen first crosses the border.
This expansion of expedited removal may lead to lawsuits filed against the Trump administration, according to Johnson of UC Davis. “It’s very much in tension with our ordinary conception of due process,” he said. “I’m sure there will be legal challenges.” Notably, expedited removal proceedings do not include a court appearance or access to a lawyer.
Johnson also predicted that the administration will implement the new changes quickly. “I would think in the very near future, probably a matter of weeks if not months, we’re going to see some kind of regulations that put this expanded expedited removal into effect.”
DACA Recipients
Kelly’s memos do not outline a specific stance on immigrants protected from deportation by President Obama's Deferred Action for Childhood Arrivals program, known as DACA. But Gulasekaram is concerned that DHS policy has been rewritten to provide a way around those protections. Specifically, he pointed to a lack of exemptions for enforcement, saying, “There’s nothing in here that guarantees that ICE agents can’t go after young people, people in school, et cetera.” For now at least, the memos do not specifically identify DACA recipients for deportation, though they indicate that further policy changes will be forthcoming.
Hiring Additional ICE Officers and Agents
While Johnson predicts that new regulations could be put in place in a matter of weeks, Gulasekaram says other directives will take longer to implement. The memo's call for hiring 5,000 new Customs and Border Protection agents and 10,000 new ICE agents, building a border wall and adding more detention facilities will require massive budget allocations. “The president has articulated how he wants to go about it, and now he’s going to put pressure on Congress members to fund it.”
