Rep. Capuano (D-MA) on Immigration Policy | New NY 23rd

Homeland Security Secretary John Kelly, issued two Memoranda, ‘Implementing the President’s Border Security’ and ‘Immigration Enforcement Improvements Policies and Enforcement of the Immigration Laws to Serve the National Interest.’  These documents appear to have been written with greater care than the President’s January 27th Executive Order on refugee admissions, which court action has stayed.  It is not yet clear what the courts will do with regard to these memos.

I do not object, and I think no reasonable person could object, to an effort to secure our borders, to establish “operational control” of entry into the United States.  Nor could one object to the deportation of aliens convicted of crimes or found to have made fraudulent claims for asylum.

These memos, however, propose extreme measures to achieve questionable ends.  Their purpose is to deny entry to many migrants and speed the deportation of many others.  Persons apprehended at the southern border will be detained or sent back to Mexico, whether or not they are citizens of Mexico.  It’s important to note that Mexico is under no obligation to accept someone who is not a Mexican citizen.  So this process will require the cooperation of Mexico, a country which the Administration has consistently antagonized.

This will also require the construction of vast new detention facilities for which no cost estimates are yet available.  DHS foresees the hiring of 5500 new agents for Customs and Border Protection, and 10,000 new agents for Immigration and Customs Enforcement.  There are no cost estimates for all of that additional federal hiring either. Moreover, and more troubling, President Obama’s Priorities Enforcement Program targeting convicted felons, terrorists and gang members is explicitly ended. I fear that limited resources may be wasted on apprehending immigrants who pose no danger to any community.

The memos reinstate a program that many urban mayors and police chiefs object to: it enlists state and local law enforcement officers as what Secretary Kelly calls “force multipliers” to investigate, arrest, and detain any undocumented person with whom they come in contact.  This could apply to someone who witnesses a murder or a woman seeking a restraining order to protect her US citizen children from an abusive father.

The memos vastly increase the number of people who could be deported without due process. “Expedited removal” has previously been applied to aliens apprehended within 100 air miles of the border who had been in the United States for two weeks or less.  “Expedited removal” is now in effect everywhere in the United States for people who cannot affirmatively prove two years residence here.  Courts may note that the Fourth and Fifth Amendments refer to “persons” rather than, more narrowly, to citizens.

Aliens claiming asylum will still be accorded “credible fear” hearings, but the memo states that some will be sent to Mexico until those hearings can be scheduled.   The asylum officer must assess the credibility of the applicant’s fear of persecution or torture but must also consider the “statistical likelihood” that the claim will be upheld on review by the Department of Justice.  The memos aren’t clear what exactly this means. “Statistical likelihood” on the basis of what sample group?    Will asylum seekers be comparted to others from the same continent or nation of origin, or of the same gender, or religion?

The memos express concern for the safety of unaccompanied minors and propose to prosecute as “human traffickers” parents who pay intermediaries to bring their children to the United States. The good news for children is that DACA, the deferred action program for “Dreamers,” remains intact. So far.

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