WASHINGTON -- Homeland Security Secretary John Kelly has issued new orders to agency heads that expand on the number of illegal aliens who can be detained and deported under executive orders President Donald Trump signed last month.
Under Kelly's orders, which were contained in two memorandums distributed to agency heads Friday, hundreds of thousands more people in the United States illegally will be subject to what are known as expedited removal proceedings to quickly get them out of the country.
The new directives would supersede nearly all of those issued under previous administrations, Kelly said, including measures from President Barack Obama aimed at focusing deportations exclusively on hardened criminals and those with terrorist ties.
But a senior White House official said the memos were not yet final, that White House lawyers had objected to some of their provisions, and that while the memos were the Department of Homeland Security's "final cut" at implementing Trump's orders, they had not yet received White House approval.
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"The White House has the final say," said the official, who declined to be identified by name.
The White House official did not specify what parts of the memos had been questioned by White House lawyers.
Kelly's 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 U.S. illegally. Those children would no longer be protected from deportation, and their parents would be subject to criminal prosecution if they paid human traffickers to bring their children across the border.
One of the memos said 155,000 unaccompanied children have been detained in the past three years.
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"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 said in the memorandums, copies of which were made available to the McClatchy news service Saturday.
Both memorandums bear Kelly's signature and indicate that they were distributed to the heads of U.S. Customs and Border Protection, Immigration and Customs Enforcement, and Citizenship and Immigration Services, among others. A Homeland Security spokesman declined to confirm the authenticity of the memos, saying the agency does not confirm memos that have not been made public. She did not dispute their authenticity.
"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 led the Justice Department's Office of Immigration Litigation under Obama.
Fresco predicted quick legal challenges from immigrant groups and that a large percentage of Kelly's orders will be blocked by courts shortly after they are implemented.
The first memorandum specifically exempts from enforcement "Dreamers," the young immigrants who were brought into the country illegally as children, who currently are protected under Obama's Deferred Action for Childhood Arrivals program. But their status remains in question in a second, more detailed memorandum that dismisses the idea of any protected classes of immigrants.
That memo also expands the definition of who is considered a criminal to include not only those who have been convicted of crimes, but also those who have been charged or are even thought to have "committed acts that constitute a chargeable criminal offense."
The memo broadens border patrol and Immigration and Customs Enforcement's ability to immediately deport detained individuals. Currently, expedited removal is permitted only for people who have been in the country 14 days or less. Under Kelly's orders, that period would become two years.
Another new provision would be to immediately return Mexicans who are apprehended at the border back home pending the outcomes of their deportation hearings, rather than house them on U.S. property.
The effect of the change in the definition of unaccompanied children is likely to be widespread. In his memos, Kelly says 60 percent of those who qualified under the Obama administration as unaccompanied minors were eventually reunited with a parent living in the United States illegally. Kelly said once they are reunited with their parents, they may no longer receive such protection.
In justifying going after the parents of such children, Kelly argued that they risked their children's lives by putting them in the hands of human smugglers. Kelly noted that many such children fall victim to robbery, extortion, kidnapping and sexual assault along the dangerous journey.
The memos also implement other aspects of Trump's executive orders, including the hiring of an additional 10,000 enforcement agents, expansion of detention facilities and the construction of a wall along the U.S.-Mexico border.
The memos also direct agency heads to begin immediately recruiting police officers and sheriff's deputies to act as immigration agents, a program the Obama administration began scaling back in 2012.
In the memos, Kelly says apprehensions have increased by 15,000 a month over 2015, significantly straining federal resources. More than 46,000 people were apprehended in October and more than 47,000 were caught in November along the southern border, the memo says.
"This memo is just breathtaking, the way they really are looking at every part of the entire system," said Marielena Hincapie, executive director of the National Immigration Law Center.
Joanne Lin, senior legislative counsel at the American Civil Liberties Union, said in a statement that "due process, human decency, and common sense are treated as inconvenient obstacles on the path to mass deportation. The Trump administration is intent on inflicting cruelty on millions of immigrant families across the country."
'Streamlined' version
In Munich on Saturday, Kelly said Trump is working on a "streamlined" version of his executive order banning travel from seven predominantly Muslim nations to iron out the difficulties that landed his first order in the courts.
Speaking on a panel about fighting terrorism at the Munich Security Conference, Kelly said Trump's original order was designed as a "temporary pause" to allow him to "see where our immigration and vetting system has gaps -- and gaps it has -- that could be exploited."
He said the Trump administration was surprised when U.S. courts blocked it from implementing the executive order, and now "the president is contemplating releasing a tighter, more streamlined version" of the travel ban.
Kelly said this next time he will be able to "make sure that there's no one caught in the system of moving from overseas to our airports."
"That being said, we will have a short phase-in period to make sure that they don't get on the airplane," he added.
Asked whether that meant Trump's new executive order would allow people with green cards and visas to come into the United States, Kelly said "it's a good assumption."
Legal analysts have said a new executive order that retains the bans would not likely allay the concerns of federal judges who put the original order on hold.
Even if Trump made clear that his order did not apply to green-card holders, or limited it so that it affected only those applying for visas, a three-judge panel with the U.S. Court of Appeals for the 9th Circuit said that would not necessarily persuade them to lift their freeze. That is because such changes would not help U.S. citizens who "have an interest in specific noncitizens' ability to travel to the United States," the judges wrote.
Trump, too, still must convince judges that whatever he does is not a Muslim ban disguised as a national security measure. Challengers could point to his campaign trail comments as evidence that even the new order is meant to discriminate on the basis of religion and thus runs afoul of the Constitution. A federal judge in Virginia recently cited those comments in an order declaring that the ban should be put on hold.
The seven nations affected by the original ban were Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. On Saturday, Kelly again mentioned "seven nations."
Asked about the effectiveness of a blanket ban on seven countries, Thomas de Maiziere, Germany's top security official, suggested it could be counterproductive.
"To ban whole countries perhaps could create more collateral damage, and perhaps does not produce more security," he said. "The more precise you do it, the more effective you are."
Information for this article was contributed by Franco Ordonez of Tribune News Service; by David Rising of The Associated Press; and by Michael Birnbaum, Lena H. Sun, Matt Zapotosky and David Nakamura of The Washington Post.
A Section on 02/19/2017