Advocates gearing up to challenge tough new DHS rules on deportation

Immigration lawyers have already begun taking steps to challenge the President Donald Trump’s sweeping new directives to step up deportations of those in the country illegally.

Some of the top immigration rights groups and their lawyers huddled over the weekend and Tuesday to debate when and how they want to attack directives released Tuesday implementing Trump’s Jan. 27 executive orders geared toward beefing up border security and interior enforcement.

“President Trump does not have the last word here,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “The courts and the public will not allow this un-American dream to become reality.”

The Trump administration on Tuesday made public new rules on immigration enforcement that will vastly expand the Department of Homeland Security’s authority to detain and deport people in the country illegally.

The courts and the public will not allow this un-American dream to become reality. Omar Jadwat, ACLU

The release of the documents – two memorandums signed Monday by DHS Secretary John Kelly – set off a scramble by immigrant advocates to determine how best to challenge the new rules, which reverse years of more lenient practices.

White House lawyers took a few extra days to review the directives after Kelly signed them on Friday in an effort to hold off court challenges. Another Trump immigration order, this one limiting travel to the U.S. by citizens of seven majority-Muslim nations was blocked by the courts.

White House press secretary Sean Spicer defended the legal merits of the travel ban, but said the White House is drafting a new order so that the policies can be put more quickly into action. He said he was not concerned about legal challenges on the new order noting that administration did its due diligence and was prepared for possible legal challenges.

“We have done a phenomenal job of working with the various departments, particularly DHS and DOJ, State and through the White House staff to make sure that we are well within any concerns that the court might have,” Spicer said.

Marielena Hincapié, executive director of the National Immigration Law Center, called the new regulations “mind boggling” and predicted court challenges to a number of their provisions, including relaxing restrictions on who can be deported immediately upon arrest, changes in the way asylum cases are to be treated and new guidelines on when an asylum seeker as a credible fear if returned to his or her homeland.

Hincapié said one of the questions being discussed is whether to challenge the regulations in court now or wait until the Trump administration starts implementing measures advocates see as illegal or unconstitutional.

“We’re going to have to make a judgment call,” she said.

Among the changes likely to draw a legal challenge are the expansion of who can be immediately deported and a provision that would require immigrants entitled to a court hearing before they are deported to wait for that hearing in Mexico or Canada.

Under current regulations, immediate removal can be applied only to people who’ve been caught within 100 miles of the border and who have been in the United States 14 days or less. The new regulations, however, would allow immigration agents to remove people caught anywhere in the United States who have been in the country two years or less.

Immigrants entitled to a court hearing no longer would be released into the United States to await their hearing date. Instead, they would be returned to the country from which they crossed, which in the vast majority of cases would be Mexico, until their court date.

Mexican officials did not respond immediately to a request for comment.

“I assume Mexico is going to have to agree to this,” Hincapié said.

The final orders, distributed to agency heads on Monday, wiped away protections implemented by the Obama administration that were designed to protect those in the United States illegally who had not committed other crimes.

The final orders are very similar to drafts dated Friday that McClatchy had obtained over the weekend but that White House officials insisted had yet to receive final White House approval.

The directives also eliminate protections for children who arrived in the United States as “unaccompanied minors” but later were reunited with relatives living in the country. The new orders foresee the prosecution of such children’s parents for paying smugglers to bring them here.

“The parents and family members of these children, who are often illegally present in the United States, often pay smugglers several thousand dollars to bring their children into this country,” the orders read.

The two directives outline how President Donald Trump’s Jan. 27 executive order will be implemented. They were approved by the White House and distributed to the heads of U.S. Customs and Border Protection, Immigration and Customs Enforcement and Citizenship and Immigration Services, among others.

More than 408,000 people were apprehended along the southern border last year. Most were fleeing poverty and violence in Honduras, Guatemala and El Salvador, three of the most violent countries in the world.

The Trump administration says the surge has overwhelmed federal resources and created “a significant national security vulnerability.”

We have done a phenomenal job. White House Press Secretary Sean Spicer

Thousands of immigrants apprehended at the border and released from custody with court dates never appeared for their hearings. Immigration courts are experiencing a historic backlog of removal cases. Kelly said 534,000 immigration cases are now pending in courts – a 200 percent increase from fiscal 2004.

The directives also foresee hiring 10,000 more agents to enforce immigration laws away from the border.

While the directives state that there are no protected class of immigrants, Department of Homeland Security officials emphasized to reporters Tuesday that young people who were brought into the country illegally as children would keep their protections.

The order specifically exempts from enforcement young immigrants who currently are protected under Obama’s Deferred Action for Childhood Arrivals. That program was intended to protect people who were brought to the United States as children without documentation and essentially grew up here. Under the program, they can’t be deported for two years and are given permission to work.

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