The two leaked memoranda reported on in this piece are Enforcement of the Immigration Laws to Serve the National Interest and Implementing the President's Border Security and Immigration Enforcement Improvements Policies, both dated February 17 and both signed by Homeland Security Secretary John Kelly.
As of the writing of the article, neither had been officially adopted as policy by the Trump Family Business Administration. But given the credible reports of serious misconduct by ICE agents during the early weeks of Trump's mass deportation effort, it's also possible that leaking these memorandum could function as a kind of wink-and-nod to ICE as to what the Administration's intentions and desires are.
The draft orders also would affect thousands of children who arrived in the United States as “unaccompanied minors” and were subsequently reunited with a parent living in the country illegally. Those children would no longer be protected against deportation, and their parents would be subject to criminal prosecution if they had paid human traffickers to bring their children across the border – a common scenario now.For the Trump Family Business Administration and its white supremacist supporters, five-year-old children being reunited with their parents are "a significant national security vulnerability."
One of the memos said 155,000 unaccompanied children have been detained in the past three years, and that 60 percent of them were later reunited with a parent inside the United States.
“The surge of illegal immigration at the southern border has overwhelmed federal agencies and resources and has created a significant national security vulnerability to the United States,” Kelly wrote in the memorandums, copies of which were made available to McClatchy Saturday.
Illicit diplomatic dealings with Russia? Not a problem. Family values in uniting minor children with their parents? Ha, you didn't think Republicans were serious with all that "family values" jabber, did you? This is how the Trumpists view threats to "national security." Some to kind in mind when the Trump Family Business Administration decides they can enrich themselves and their cronies by invading some other country.
Ordoñez also explains:
The memos were intended to implement two of Trump’s executive orders on enforcement of immigration laws inside the United States, but would go farther by wiping away several orders President Barack Obama issued to protect those in the United States who had not committed criminal acts beyond entering the country without permission.For what it's worth, both memoranda use identical language saying, "This memorandum implements the Executive Order entitled "Border Security and Immigration Enforcement Improvements," issued by the President on January 25, 2017." The President said in his news conference last week that this EO would be withdrawn during this coming week and replaced by another.
“These memorandums represent a significant attempt to expand the enforcement authority of the administration in areas that have been heavily litigated,” said Leon Fresco, who headed the U.S. Department of Justice’s Office of Immigration Litigation under Obama.
The "Enforcement of the Immigration Laws" memo contains this language:
The Department no longer will exempt classes or categories of removable aliens from potential enforcement. In faithfully executing the immigration laws, Department personnel should take enforcement actions in accordance with applicable law. In order to achieve this goal, as noted below, I have directed ICE to hire I 0,000 officers and agents expeditiously, and to take enforcement actions consistent with available resources. However, in order to maximize the benefit to public safety, to stem unlawful migration and to prevent fraud and misrepresentation, Department personnel should prioritize for removal those aliens described by Congress in Sections 212(a)(2), (a)(3), and (a)(6)(C), 235(b) and (c), and 237(a)(2) and (4) of the Immigration and Nationality Act (INA).I won't try to get into the weeds of all those categories. But I'll note here that wording like "have committed acts which constitute a chargeable criminal offense," i.e., not even charged much less convicted with no distinction of the kind of criminal offenses specified, and "in the judgment of an immigration officer, otherwise pose a risk to public safety or national security" are broad enough to put hundreds of thousands or even millions in those detention center in which private for-profit prison companies are planning to detain the targets of this mass deportation. Especially since the same memorandum defines minors reuniting with their parents as "a significant national security vulnerability."
Additionally, regardless of the basis of removability, Department personnel should prioritize removable aliens who: (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; (5) have abused any program related to receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
I'm not familiar with these kinds of immigration-enforcement policy documents, so it's hard for me to make a judgment as whether some of the statements in both memoranda are considered as necessary legal stipulations in such documents or whether they are propaganda statements to promote the Trumpist line about the scary, scary "criminal aliens." But I will say it's hard to tell the difference in some cases.
Daphne Eviatar engages in some informed speculation about how the new version of the Muslim Ban Executive Order may approach the anti-refugee policies that Trump tried to implement with the January 25 EO, Travel Ban Could Let Repressive Regimes Decide Who Can Enter US Just Security 02/17/2017. As she notes, not every provision of the January 25 EO is covered by the federal court stay. And she explains:
The [Jan 25] order appears to envision the U.S. government seeking and relying on information from some of the most repressive and dysfunctional regimes in the world, about the citizens who are fleeing them, often because of that repression and dysfunction. Would the United States rely on the Iranian regime, for example, to vet the requests of Iranian political dissidents and fleeing religious minorities, and to provide the U.S. government reliable information about those dissidents or minorities so the US can grant them a visa? Would the United States rely on information from the regime of Bashar al-Assad in Syria — with which the US was not long ago on the brink of war — to vet leaders of opposition groups we’ve supported, or their family members?And it's hard to argue with her characterization of it:
It’s a bizarre plan that would place the fate of the persecuted in the hands of their persecutors, and would rely on information provided by our proclaimed enemies to determine who we will allow in the United States. What’s more, if the United States were actually planning to provide these states with the names of individuals seeking to come to the United States, it would immediately endanger not only the individuals seeking to leave, but also their family members, who intend (or are forced) to stay behind.And, on the family unification issue, she notes, "Within the US, the effect would be to deny established immigrant and refugee communities already here the ability of ever seeing their relatives again."
Of course, the U.S. government should gather reliable information about refugees. And through a rigorous and often grueling vetting process, it already does.
... to insist that every applicant’s home country provide that information, even if it’s a country that the US routinely criticizes for prosecuting, imprisoning and executing people based on false charges and fabricated evidence, is beyond absurd. Since some of these countries are clearly not U.S. allies, and would likely either refuse or be unable to provide the requested information, the scheme could in effect – and perhaps by design – lead to a default ban on refugees from Muslim-majority countries.We would be turning our backs on precisely those refugees who need us the most.
She also cites the legal opinion of federal District Court Judge Leonie Brinkema in Tareq Aqel Mohammaed Azis v. Donald Trump (Lawfare link), which says:
Defendants have maintained that the EO is necessary to protect the United States from terrorist attacks tobe carried out by nationals ofthe seven affected countries [Dkts. 31-1, 80]; however, they have not offered any evidence to identify the national security concems that allegedly prompted this EO, or even described the process by which the president concluded that this action was necessary.
And contrary to the national security concems recited in the EO, the only evidence in the record on this subject is a declaration of 10 national security professionals who have served at the highest levels of the Departinent of State, the Departinent of Homeland Security, the Central Intelligence Agency, and the National Security Council through both Republican and Democratic administrations, [Dkt. 57], and at least four of whom "were current on active intelligence regarding all credible terrorist threat streams directed against the [United States] as recently as one week before the issuance of the" EO. Id. at Ƣ 2. They write
We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds.Id.. at Ƣ 3. They also observe that since September 11, 2011, "not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order." Id. at Ƣ 4.