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‘Open Season’ on Immigrants as Discretion Fades

Will Trump’s new DHS pick follow ‘arrest-them-all’ playbook?

Immigrant families stand in line to get bus tickets in 2016 in McAllen, Texas. (John Moore/Getty Images file photo)
Immigrant families stand in line to get bus tickets in 2016 in McAllen, Texas. (John Moore/Getty Images file photo)

The recent arrest and detention of an undocumented 10-year-old girl with cerebral palsy is the clearest evidence yet that President Donald Trump isn’t focused solely on “bad hombres,” immigrant advocates say.

Arrests of undocumented criminals are up under Trump, a testament to his promise to crack down on dangerous immigrants. But arrests of undocumented people without any convictions have also skyrocketed, raising questions about how the administration is using what it says are limited resources to keep the country safe.

“Discretion is inevitable. We can’t deport every single person, and so the real question becomes how to enforce it,” says Shoba Sivaprasad Wadhia, a law professor at Penn State University who wrote a book on immigration enforcement. “This administration’s enforcement policy is a little bit of a wild card.”

The girl, Rosa Maria Hernandez, who arrived in the country before her first birthday, was released on Nov. 3 after spending more than a week in government custody. Rosa Maria had been traveling with a relative who is a U.S. citizen to a hospital in Texas for gallbladder surgery when their vehicle was stopped at a Border Patrol checkpoint.

Agents followed the car to the hospital and took Rosa Maria into custody following her surgery. She was released with a notice to appear in immigration court, a Customs and Border Protection official said, meaning she could eventually be deported. Rosa Maria is back at home in Laredo, Texas.

“You could use this case to really call into question whether discretion is really being used or being used in a meaningful way,” Wadhia said.

Watch: DACA Protesters Sit on Senate Steps, Get Arrested

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Less latitude

Prosecutorial discretion has long been a key component of the government’s enforcement strategy. All three immigration agencies — CBP, Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services — are authorized to make case-by-case determinations when they encounter undocumented people, including whether to arrest them and place them in deportation proceedings.

“Immigration officers are generally seen as having wide latitude in determining when, how, and even whether to pursue apparent violations of the Immigration and Nationality Act,” according to a 2013 Congressional Research Service report.

Presidents Dwight D. Eisenhower and John F. Kennedy exercised discretion when they allowed certain undocumented Cubans to remain in the United States after the 1958 revolution on the island. In 1990, President George Bush authorized deportation deferrals for undocumented spouses and children of U.S. citizens. And President Barack Obama limited enforcement to violent criminals and recent border-crossers in 2014 after being tagged the “deporter in chief” by Janet Murguía, president of the group that was then known as the National Council of La Raza.

Trump upended his predecessor’s immigration enforcement priorities quickly after taking office. In February, then-Homeland Security Secretary John F. Kelly issued a memorandum declaring that DHS would “no longer exempt classes or categories of removable aliens from potential enforcement.”

“Prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws,” the memo states.

The directive all but wipes out the role of discretion, activists say.

“The administration’s so-called priorities memo isn’t a priorities memo; it’s essentially a statement that it’s open season on immigrants,” said Michael Tan, a staff attorney at the American Civil Liberties Union who represented Rosa Maria. “There’s a lot of talk about going after ‘bad hombres,’ but it’s clear that that’s not what they’re doing.”

Between Jan. 22 and the beginning of September, ICE agents arrested more than 28,000 undocumented immigrants without a criminal record, a spokeswoman said. That represents a 180 percent increase over the 10,031 arrested during roughly the same time period in 2016.

Year-end statistics released by the Homeland Security Department last week show ICE arrested nearly 32,000 non-criminals between Inauguration Day and the end of fiscal 2017, more than a quarter of all arrests since Trump took office. Of those, just fewer than 20,000 had been charged with a crime. 

Sarah Rodriguez, an ICE spokeswoman, said in an email statement that the vast majority of non-criminals placed under arrest were either facing criminal charges, had a notice to appear in immigration court or had been previously deported. 

“These results clearly reflect the continued prioritization of enforcement resources on aliens who pose a threat to national security, public safety and border security,” Rodriguez said. 

But critics are quick to point out that Rosa Maria was none of those things.

“It’s long been the case that the agency has advised that discretion be exercised as early as possible,” Wadhia said. “The best time to use discretion in Rosa’s case would have been before her arrest, and the best choice would have been to not make an arrest at all.”

Shrinking options

Choosing not to make an arrest isn’t the only form of discretion that immigration officers may use. For years, ICE has held off removing undocumented immigrants who aren’t considered a threat to public safety and, in some cases, who have U.S. citizen children or spouses — even if a judge has issued a final order of removal.

Under Trump, that’s changing.

“What ICE has done in many of these cases is revoke those stay of removals and place them in deportation proceedings,” said Randy Capps, director of research for U.S. programs at the nonpartisan Migration Policy Institute.

One such case involved Carlos Humberto Cardona, an undocumented father who assisted in relief efforts at Ground Zero following the Sept. 11, 2001, terrorist attacks in New York City. Cardona, who was convicted of a nonviolent drug offense in 1990, had periodically checked in with ICE officers in recent years until he was arrested over the summer.


House Democratic Caucus Chairman Joseph Crowley, who represents the Queens, New York, district where Cardona lives, said Trump’s new enforcement policies “have struck fear and dismay into the hearts of my constituents, and this is just the latest in a long line of troubling actions.”

“Deporting Mr. Cardona would send a chilling message not just to the immigrants who call our country home, but to all who would help when their country calls on them,” Crowley said.

The Justice Department, which prosecutes deportation cases against immigrants arrested by ICE, is also scaling back its use of discretion by pressuring immigration judges to decide cases more quickly and to not delay cases previously considered low-priority.

Immigration laws allow judges to grant numerous delays in immigrants’ court proceedings at the request of their lawyers, but the number of continuances had increased significantly — by 23 percent from fiscal 2006 through 2015, according to the Government Accountability Office.

Immigrant advocates say delaying a case’s outcome gives them time to make the best possible arguments for their clients, but hawkish Republicans say the delays have gotten out of hand.  

“Rampant continuances or postponements [have] further escalated this backlog, which has reached epic portions,” House Judiciary Chairman Robert W. Goodlatte of Virginia said at a hearing last month.

In July, DOJ’s Executive Office for Immigration Review narrowed the instances in which a judge should grant a continuance. “The memorandum … does not direct the determination of specific cases,” Acting EOIR Director James McHenry told lawmakers at the same hearing. “It does remind judges, however, of considerations they should keep in mind regarding docket efficiencies when entertaining certain types of continuance requests.”

With a change in leadership at DHS, it remains to be seen whether there will be more cases like Rosa Maria’s. Trump’s new Homeland Security secretary, Kirstjen M. Nielsen, told lawmakers at her confirmation hearing in November that she agreed with the Obama administration’s enforcement priorities.

[Exclusive: Taxpayers paid $220K to Settle Case Involving Rep. Alcee Hastings]

Nielsen also told Democratic Sen. Kamala Harris of California that she agreed with a statement by her predecessor at DHS, who is now White House chief of staff. Kelly said in an April interview that “just because you’re in the United States illegally doesn’t necessarily get you targeted.”

But the administration’s February enforcement memo was not discussed.

The location of Rosa Maria’s arrest has also raised questions about enforcement under Trump. While Border Patrol agents originally encountered Rosa Maria at a checkpoint, they took her into custody at a hospital, one of several “sensitive locations” where immigration enforcement rarely took place under past presidents.

Other locations included in the sensitive locations policy — schools, places of worship and protests —have all been sites of reported immigration enforcement under Trump, even though separate memos outlining the policy can still be found on the websites for both ICE and CBP. In Rosa Maria’s case, the administration says it complied with the policy.

CBP disputed whether the agency’s sensitive locations policy applied to Rosa Maria’s case since Border Patrol officers first encountered her at an immigration checkpoint and not at the hospital where she was eventually taken into custody.

The ACLU disagrees.

“We’re fairly certain that the Border Patrol agents in this case violated that policy,” Tan said. “We’re going to work to find out what went wrong here.”

At her confirmation hearing, Nielsen committed to abiding by the sensitive locations policy.

“And should any further clarification be needed, I would ensure that that occurs,” she said.

But without a rewrite of the February policy memo allowing for the arrest of any undocumented immigrant, advocates worry that Trump’s crackdown on non-criminals will ultimately split up families and render the role of discretion in immigration enforcement a thing of the past.

“Without recognizing the humanitarian end of discretion, you end up with a pretty troubling policy,” Wadhia said.

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