A bonanza of immigration-related activity

The day began and ended with activity related to President Trump’s executive order on immigration.

This morning as part of his State of the City address, Mayor Ed Murray announced that today the City of Seattle would be sending Freedom of Information Act requests to three federal government agencies: the Department of Justice, the Department of Homeland Security, and DHS’s Immigration and Customs Enforcement division. The requests ask for all records, documents and communications related to interpretation of the executive order, including:

  • what the EO’s threat of denying funding for “sanctuary cities” means, including the definition of a “sanctuary city” and whether Seattle and/or other jurisdictions have been designated as such;
  • likewise, what it means for the Office of Management and Budget “to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction,” and which categories of federal funding are/are not subject to the executive order;
  • “policies, procedures, plans, and potential or actual enforcement actions by the federal government against state or local jurisdictions that have in effect a statute, policy, or practice that the government believes prevents or hinders the enforcement of federal law;”
  • what it means for federal “agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens;”
  • the part of the executive order “setting forth enforcement priorities for removal of undocumented immigrants;”
  • how ICE will “take all appropriate action to hire 10,000 additional immigration officers;”
  • “continuation, modification, or cancelation of the Deferred Action for Childhood Arrivals (“DACA”) program, including but not limited to policies, procedures, and plans relating to enforcement action against current DACA recipients, alteration of the status of current DACA recipients, or treatment of pending new and renewal DACA applications;”
  • “the number of immigrants who have been taken into custody in King County, Washington by ICE since January 20, 2017, and for each such immigrant, the immigrant’s immigration status, the basis for detention, where the immigrant is presently detained or the date of release, and the status of immigration-related proceedings, if any;”
  • “comparisons of crime and other characteristics in (1) state and local jurisdictions that the federal government believes do not prevent or hinder the enforcement of federal immigration law; versus (2) state and local jurisdictions that the federal government believes do prevent or hinder the enforcement of federal immigration law.”

This is a super broad FOIA request which would take months to fulfill, if the federal government chooses to do so at all. The agencies, for their part, are likely to assert attorney/client privilege and national security concerns to redact large portions of the relevant documents and communications. So while it would be nice for the city to get all this information, this FOIA request is more likely to be more effective as a tool to force the feds to get specific on their interpretation of the executive order.

 

And to that end, shortly before Murray’s speech this morning the Department of Homeland Security issued two memos with guidance on what Trump’s executive order means for enforcement of the immigration laws, especially on undocumented immigrants.

The first memo, entitled “Enforcement of the Immigration Laws to Serve the National Interest,” lays out principles for re-interpreting and enforcing the Immigration and Naturalization Act (the main body of immigration law).  Among the things it says:

  • All previous directives, memoranda and field guidance that conflict with the new memos are rescinded, except for DACA which is still in force.
  • DHS (of which ICE is a division) will no longer exempt classes or categories of removable aliens from potential enforcement; all the laws are in full effect on everyone (with the exception of DACA enrollees, who enjoy lawful presence in the U.S.).
  • DHS will hire 10,000 officers and agents “expeditiously” to greatly expand their ability to arrest, detain and deport “removable aliens” from the United States.
  • That said, to the extent that resources are constrained, the department will prioritize removable aliens who have been convicted of and criminal offense; have been charged with any criminal offense that has not been resolved; have committed acts which constitute a chargeable criminal offense;  have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; have abused any program
    related to receipt of public benefits; are subject to a final order of removal but 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.
  • The 287(g) program that allows state and local law enforcement organizations to opt into authorization to enforce federal immigration laws should be expanded to the greatest extent possible;
  • Prosecutorial discretion in arrest, criminal prosecution, or removal is purely on a case-by-case basis; no classes or categories of people will be exempted.
  • The Privacy Act is reinterpreted: According to their previous rules, “An individual is defined in the Privacy Act to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all persons when systems of records maintain information on U.S. citizens, lawful permanent residents, and foreign nationals.” But the new DHS administration is concerned that those Privacy Act protections for criminal aliens have left their victims “feeling marginalized and without a voice” so under their new policy “The Department will no longer afford Privacy Act rights and protections to persons who are neither U.S. citizens nor lawful permanent residents.” Further, a new Victims of Immigration Crime Engagement (VOICE) Office is established to aid victims in acquiring information about the offender. And ICE is directed to “reallocate any and all resources that are currently used to advocate on behalf of illegal aliens (except as necessary to comply with a judicial order) to the new VOICE Office, and to immediately terminate the provision of such outreach or advocacy services to illegal aliens.”
  • A new data collection effort regarding “aliens apprehended by ICE and the disposition of their cases” will be undertaken by ICE. The division will issue a weekly report to the public based on the data collected.

The second memo, titled “Implementing The President’s Border Security and Immigration Enforcement Improvements Policies,” includes several additional measures, including:

  • a plan with the Department of Justice to “surge the deployment of immigration judges and asylum officers” to handle the dramatically expanded caseload resulting from stepped-up enforcement.
  • Restrictions of when ICE personnel should release from detention an alien apprehended after illegally entering the country (or attempting to). Under the new rules, they are only released if they are found to be a U.S. citizen or lawful resident; if they will immediately leave the country after release; if the law or a judge says they must; if a senior officer authorizes parole, or they are accepted under the asylum rules.
  • 5000 more Border Patrol agents, and 500 Air and Marine Agents/officers will be hired.
  • The President has directed all departments to “identify and quantify all sources of direct and indirect Federal aid or assistance to the Government of Mexico.” Gee, what do you think they might use that money for? You guessed it:
  • “DHS shall immediately begin planning, design, construction and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads, along the land border with Mexico in accordance with existing Jaw, in the most appropriate locations and utilizing appropriate materials and technology to most effectively achieve operational control of the border.”  It goes on: “The Under Secretary for Management, in consultation with the Commissioner of CBP
    shall immediately identify and allocate all sources of available funding for the planning, design, construction and maintenance of a wall, including the attendant lighting, technology (including
    sensors), as well as patrol and access roads, and develop requirements for total ownership cost of this project, including preparing Congressional budget requests for the current fiscal year (e.g., supplemental budget requests) and subsequent fiscal years.”
  • DHS/ICE will expand its use of “expedited removal” processes. Previously expedited removal (with almost no review or due process) was limited to those arrested within 100 miles of the border and within 14 days of their entry into the country and those who arrived by sea other than at a port of entry.  But because of a “surge of illegal immigration at the southern border” which they claim has overwhelmed agencies and immigration courts, the department will be writing a new rule to expand the use of expedited removal.
  • ICE and Customs and Border Protection (CBP) will dramatically expand their detention facilities at or near the border with Mexico. CBP will focus on short-term detention facilities, and ICE will cover everything else.
  • Authority to parole aliens into the United States pending their completion of the admission process is limited to cases where it is “necessary because of demonstrated urgent humanitarian reasons or significant  benefit.” The authority will be used “sparingly,” and is decided on a case-by-case basis.
  • Rules for handling “unaccompanied alien minors” are updated. Previous policy allowed for placing them with their parents in the US, even if the parents were illegally present. DHS claims that led to many “abuses” of the policy and has led to administrative delays. More are likely to be repatriated than in the past. They will also crack down on people who smuggle children into the U.S. or traffic in exploited children.
  • Criminal activity near the border, including drug trafficking, will be a higher priority.

That answers many of Seattle’s FOIA questions about what the executive order means for undocumented immigrants, but doesn’t say anything about sanctuary cities — we’ll have to wait to learn more about that. And we’ll have to see if these new rules generate lawsuits in response (the smart Vegas money says yes).

 

And that brings us to this evening’s immigration news: as expected, the legal team representing Daniel Ramirez Medina filed an amended complaint in his suit against ICE claiming they are holding him illegally.

They did three things in the amended complaint. First, they updated the narrative in the original complaint with all the new information from last week’s events — including ICE’s doctoring of a document and their bizarre claims about his tattoo and purported (but unproven) gang membership. Second, they added a new cause of action, claiming that ICE violated Ramirez’s rights under the Equal Protection Clause of the U.S. Constitution, engaging in “deliberate and invidious discrimination” by inferring solely from his Mexican heritage and tattoo that he must be a gang member.

Third, and perhaps most important, they added a request for “declaratory relief,” an official declaration by the Court that:

(a) Mr. Ramirez, and other Dreamers, have constitutionally-protected interests in their status conferred under DACA; (b) arbitrary arrest and detention violates Mr. Ramirez’s, and other Dreamers’, due process rights; and (c) Respondents lack the authority to arrest or detain Mr. Ramirez or other Dreamers on the basis of their immigration status, or the conduct described herein.

That will give Ramirez and all other DACA participants reassurance that they don’t have to live in fear of ICE swooping in and arresting them at any moment.

It’s important to note that nothing in today’s DHS memos today seem to alter Ramirez’s case, and most notably the rights that he maintains as a participant in the DACA program. But of course that will be up to the courts to confirm.

This Friday, the lawyers for DHS/ICE file their brief explaining why the District Court doesn’t have jurisdiction over the case. And sometime this week, Ramirez is expected to get a hearing in front of an immigration judge to argue for being released on bond.  Stay tuned.

The best news of the day: the DACA program lives on.

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