The Trump administration is greatly expanding the number of people living in the US illegally who are considered a priority for deportation, including people arrested for traffic violations, according to agency documents released on Tuesday.
The documents represent a sweeping rewrite of the nation’s immigration enforcement priorities.
The Department of Homeland Security (DHS) memos, signed by Secretary John Kelly, lay out that any immigrant living in the US illegally who has been charged or convicted of any crime – and even those suspected of a crime – will now be an enforcement priority. That could include people arrested for shoplifting or minor traffic offenses.
The memos eliminate far more narrow guidance issued under the Obama administration that focused resources strictly on immigrants who had been convicted of serious crimes, threats to national security and recent border crossers.
Kelly’s memo also describes plans to enforce a longstanding but obscure provision of the US Immigration and Nationality Act that allows the government to send some people caught illegally crossing the Mexican border back to Mexico, regardless of where they are from. One of the memos says that foreigners sent back to Mexico would wait for their US deportation proceedings to be complete. This would be used for people who are not considered a threat to cross the border illegally again, the memo said.
It’s unclear whether the US has the authority to force Mexico to accept foreigners. That provision is almost certain to face opposition from civil libertarians and officials in Mexico.
Historically, the US government has been able to quickly repatriate Mexican nationals caught at the border but would detain and try to formally deport immigrants from other countries, routinely flying them to their home countries. In some cases, those deportations can take years as immigrants ask for asylum or otherwise fight their deportation in court.
The memos do not change US immigration laws, but take a far harder line toward enforcement.
The pair of directives do not have any impact on Obama’s program that has protected more than 750,000 young immigrants from deportation. The Deferred Action for Childhood Arrivals (Daca) remains in place, though immigrants in the program will be still be eligible for deportation if they commit a crime or otherwise are deemed to be a threat to public safety or national security, according to the department.
DHS guidance is the implementation plan for executive orders on border security and immigration enforcement that Trump signed on 25 January, days after taking office.
President Trump campaigned on a pledge to get tougher on the estimated 11 million illegal immigrants in the US, playing on fears of violent crime while promising to build a wall on the border with Mexico and to stop potential terrorists from entering the country.
DHS officials, who spoke on the condition of anonymity on a conference call with reporters, said that although any immigrant in the country illegally could be deported, the agency will prioritize those deemed as posing a threat.
These include recent entrants, those convicted of a crime and people charged but not yet convicted.
However, many of the instructions to immigration agents outlined in the guidance will not be implemented immediately because they depend on Congress, a public comment period or negotiations with other nations, the officials said.
For example, the DHS will need to publish a notice in the Federal Register subject to review in order to implement one part of the plan that calls on Immigration and Customs Enforcement (Ice) agents to increase the number of immigrants who are not given a hearing before being deported.
The new guidance would subject immigrants who cannot show they have been in the country for more than two years to “expedited removal”. Currently, only migrants apprehended near the border who cannot show they have been in the country more than 14 days are subject to rapid removal.
The memos also instruct Ice to detain migrants who are awaiting a court decision on whether they will be deported or granted relief, such as asylum. DHS officials said they are reviewing what jurisdictions may have laws in place that prevent the amount of time immigrants can be held.
The agency also plans to send non-Mexican migrants crossing the southern US border back into Mexico as they await a decision on their case. DHS officials said this plan would be dependent on partnerships with the Mexican government and would not be implemented overnight.
Trump’s planned measures against illegal immigrants have drawn protests, such as an event last week that activists called A Day Without Immigrants to highlight the importance of the foreign-born, who account for 13% of the US population, or more than 40 million naturalized American citizens.