The executive orders issued on January 25, 2017, on immigration and border enforcement, and the accompanying guidance memos from the Department of Homeland Security issued on February 20, 2017, will significantly expand enforcement operations. This will result in many more Californians being detained and deported, tearing families and communities apart, with no solution in sight to fix our broken immigration system.
Although the executive orders and memos do not create any new enforcement powers, they eliminate many areas of prosecutorial discretion and extend the full force of existing laws created by Congress. These are powers, as written in 8 USC 1357, that allow immigration agents to sidestep standard policing practices by exercising “powers without warrant” inside the country to do the following:
• INTERROGATE ANYONE ANYWHERE IN THE US – Interrogate individuals anywhere in the country regarding their immigration status without first establishing objective and articulable “reasonable suspicion” that they are in violation of the law as would be required for the police to detain and question someone without a warrant. See 8 USC 1357(a)(1).
• BOARD & SEARCH TRANSPORT WITHIN 100 MILES OF BORDERS – Board and search all forms of transport (bus, trolley, train, plane, car, boat) within 100 miles of the land and sea borders (includes most of CA) without first establishing, at a minimum, reasonable suspicion or probable cause that would be required for police to search without a warrant. See 8 USC 1357(a)(3).
• ENTER ONTO PRIVATE PROPERTY WITHIN 25 MILES OF BORDERS – Enter onto private property (but not dwelling) within 25 miles of the borders (includes most major cities in CA) to patrol without first establishing, at a minimum, reasonable suspicion or probable cause that would be required for police to enter private property without a warrant. See 8 USC 1357(a)(3).
With these powers given to DHS by Congress, immigration agents can act in a manner that violates the constitutional and civil rights of Californians and do so with impunity because Congress has exempted federal officials from liability for such violations in 42 USC 1983. As a result, Californians cannot seek redress in court to hold agents accountable, which undermines their civil rights and constitutional protections. The concern now is that the executive orders and accompanying memos will extend the full force of DHS powers with little protection for Californians. The most troubling aspects of the orders and memos include:
• WARRANTLESS DETENTION IN JAILS – DHS will reintroduce Secure Communities, a program in which ICE requests local law enforcement agencies identify immigrants in their custody to detain them, without a warrant from ICE, for immigration enforcement purposes. This includes individuals who have not been convicted or charged.
• CROSS-DEPUTIZATION OF POLICE – DHS will expand 287(g) agreements with local law enforcement agencies to cross-deputize police so they may assume the powers and the immunities of immigration agents as described above. Acting under the color of federal authority, police are emboldened to ignore state laws that require them to establish, at a minimum, reasonable suspicion before detaining, interrogating, and searching someone.
• SIGNIFICANT INCREASE OF IMMIGRATION AGENTS – DHS will grow its force with NO commensurate increase in oversight and accountability, which is critical given the extraordinary power and immunity granted to DHS by Congress. ICE will increase its agents by 10,000, tripling its force and bringing the total number of its agents to 15,000. Border Patrol will grow by 5,000, growing the largest component agency of CBP to 25,000, with much of that deployed at the southern border where the average apprehension rate is about 2 per agent per month.
• EXPEDITED REMOVAL WITHOUT DUE PROCESS – DHS will apply the expedited removal program beyond the border region (first 100 miles) to allow the agency to deport immigrants who arrived within the last two years, without giving them access to an immigration judge to pursue possible relief, denying them due process.