Background: Obama’s Former Deportation Priorities

As you likely know, immigration reform was one issue that President Obama pressed when running for the Oval Office. Unfortunately, under his administration, the immigration overhaul that he had promised never materialized, and more than two million people were deported. That was controversy in and of itself. Not as controversial was the Obama administration’s immigration enforcement policies with respect to undocumented workers, which focused, on the one hand, deporting dangerous criminals, and on the other hand, keeping families together. A Memo from then Secretary of Homeland Security Jeh Johnson described the enforcement priorities. It focused primarily on fairly serious offenders. And it sought, implicitly to strike a balance.

Trump’s Executive Orders

However, within days of assuming the Presidency, on January 25, 2017, Trump signed two Executive Orders: Enhancing Public Safety in the Interior of the United States (“Public Safety”) and Border Security and Immigration Enforcement Improvements (“Immigration Enforcement”). As outlined in Public Safety, deportation will be enforced against undocumented immigrants that:

• Have been convicted of any criminal offense;
• Have been charged with any criminal offense, where such charge has not been resolved;
• Have committed acts that constitute a chargeable criminal offense;
• Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency;
• Have abused any program related to receipt of public benefits;
• Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
• In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Immigration Enforcement affirms the above delineated qualification of deportation. It provides, generally, that the executive branch will “detain individuals [undocumented immigrants] apprehended on suspicion of violating Federal or State law, including Federal immigration law…”

These two Executive Orders apply with special force to all undocumented immigrants. And it includes, ostensibly, uncharged conduct, like things contained in police reports, or statements or admissions made by immigrants when being interviewed by law enforcement. It also seems to apply to minor offenses from years or even decades ago.

Fears of Deportation for Minor or Misdemeanor Offenses some dating from years ago
the National Association of Criminal Defense Lawyers noted, the language of the Executive Orders may be interpreted so that it applies to “past convictions with no statute of limitations.”

As it is, these Executive Orders can and likely will have serious consequences for noncitizens who commit or, potentially committed, minor or non-dangerous offenses, including traffic violations, fraud (including visa fraud) and DUI offenses (when no one is harmed), dating from many years ago.

Sanctuary Cities

There are cities, and counties, currently resisting these Executive Orders. For instance, Larry Byrne, NYC Deputy Commissioner for Legal Affairs, told reporters that “Even if you’re a recidivist and jumped a turnstile for the fourth or tenth time, and we arrest you for the misdemeanor crime, that’s a misdemeanor – it’s not qualifying.” Democratic Mayor Bill de Blasio agrees, and has been vocal about his opinions and intentions, including not reporting DUI convictions of undocumented immigrants.

Department of Homeland Security’s (DHS) policy is publishing Declined Detainer Outcome Reports on a weekly basis detailing information on jurisdictions that are not cooperating. And as you may have heard, Trump also threatens to take away federal funding to noncomplying jurisdictions.

Conclusion

These Executive Orders, described above, do not change who is legally subject to deportation. But rather the orders greatly broaden the scope of who now is a priority, particularly among the millions of the undocumented.