//  1/22/18  //  Quick Reactions

It would take too long to rehash all of the gaslighting this administration has engaged in over the last year regarding DACA (the Deferred Action for Childhood Arrivals program).* I have documented some of it on this blog, noting how President Trump stated that DACA is “one of the most difficult subjects” for him because it involves “incredible kids,” as ICE detained and attempted to remove several DACA recipients.  The President also promised to “show great heart” to DACA recipients, as his administration attempted to end the DACA program. I further noted how Trump told the DREAM-ers they should “rest easy,” and various people in the administration (including then-DHS-Secretary John Kelly) explained that “[t]he President is obviously sympathetic” to DACA recipients.

Trump has also stated that this administration is “not after the dreamers,” and then-Secretary Kelly reiterated that DHS is “not targeting them.” These statements have started to reappear in Republican talking points about government-funding negotiations. Just last week, current DHS Secretary Kirstjen Nielsen told CBS that deporting DREAM-ers isn’t a priority for ICE: “That’s not the policy of DHS.”

It is worth making clear just how egregiously misleading these statements are. The Trump administration has simultaneously done away with (or attempted to do away with) the two safeguards that ensure DACA recipients won’t be deported—first, DACA itself, which identifies individual DACA beneficiaries as persons not to be removed, and second, other enforcement policies that attempt to reduce deportations of noncitizens who haven’t been convicted of crimes. These facts help to clarify the stakes of the administration’s apparent refusal to agree to legislative protections for DACA recipients.**

First, the specific protections for DACA recipients that will expire, or have expired in some cases. DACA directed immigration officers to “immediately exercise their discretion … in order to prevent” DACA recipients “from being placed into removal proceedings or removed from the United States.” Once that directive is gone, there is no longer an official policy that directs immigration officers not to place DACA beneficiaries into removal proceedings. DACA recipients will no longer have papers that make clear they are low priorities for removal. Thus, if DACA recipients are detained by or encounter immigration officials, there is nothing that directs the immigration officials to release the DACA recipients, or to let them stay in the United States. And some officers may elect not to do so.

Immigration officials will also have more opportunities to make those sorts of decisions because of the second kind of protections that the administration has discarded—policies that ensured persons who haven’t been convicted of crimes wouldn't be swept up in immigration raids or face immigration consequences. The administration has adopted policies directing ICE officers to attempt to remove … just about everyone who’s unlawfully present that the officers come into contact with. Toward the beginning of the Trump administration, Trump signed an executive order, which then Secretary Kelly issued a memo implementing, that hugely expanded the number of persons who are “priorities” for removal. Analyzing that memo, I wrote that it “effectively declares that most removable persons are priorities for removal.”

The Trump administration has also adopted a policy of detaining and removing people who haven’t been convicted of crimes.  These "collateral" detentions and removals can occur in the course of immigration raids that are nominally designed to target persons who have been convicted of crimes. ICE spokeswoman Danielle Bennett explained:

The biggest change is under the previous Administration, there were a lot of individuals that were not considered amenable to arrest that now, since the change in Administration, our director has said there are not going to be any classes or categories of removable aliens that are exempt.

An ICE guidance likewise now states: “ICE will not exempt classes or categories of removal aliens from potential enforcement … All of those in violation of the immigration laws may be subject to immigration arrest, detention, and if found removable by final order, removal from the United States.”

Thus, the Trump administration apparently has directed ICE to view everyone who lacks legal status as detainable and removable.  Data concerning immigration raids in the Trump administration underscores that has already started happening. Writing about “the latest deportation sweep” that caused immigration officers to arrest “650 people,” The Independent noted that “520 had no criminal record[s]”; another outlet explained that “457” of the people apprehended “weren’t targets”—“a full 70% of the immigrants swept up in this operation.” Other data highlights the administration’s proclivity to detain and remove persons who haven’t been convicted of crimes—“the largest spike in immigration arrests has actually been those with no criminal records,” from around 4200 in 2016 to more than 10,800 in 2017. (See also this spreadsheet.)

So there is nothing that directs immigration officials to release people who are unlawfully present but haven’t been convicted of crimes. Instead, the administration has a policy of detaining and potentially removing everyone who’s unlawfully present, which could*** include DACA recipients who encounter immigration officials by happenstance.

And indeed, the recent rhetoric regarding the shutdown confirms that Republicans generally, and the executive branch specifically, view DACA recipients as persons who are unlawfully present in violation of immigration laws and thus eligible for deportation. Legislative Affairs Director Marc Short stated that the administration would “not negotiate the status of 690,000 unlawful immigrants.” Senate Majority Leader Mitch McConnell (aka the Joker at the end of ‘The Dark Knight’) likewise depicted DACA negotiations as concerning “illegal immigration.”  Kellyanne Conway went on Fox News this weekend to say that "many" DACA recipients crossed the borred illegally.   The Official White House statement**** used similar language, indicating that any policy regarding DACA concerned “the status of unlawful immigrants.”  Secretary Nielson repeated on Twitter that DACA concerned "benefits for millions of illegal immigrants." The last few statements make clear that the executive branch (or at least some, albeit some very important, parts of the now-highly-not-unitary executive branch) views DACA recipients as in violation of immigration laws and thus eligible for removal.

These are not minor, technical details that the White House is glossing over or gaslighting us about. These details concern the inescpable reality that the administration’s immigration policies leave DACA recipients vulnerable to deportation.  The administration's policies mean that DACA recipients could be swept up in immigration raids, and then be detained and deported: The administration is rescinding the policy that directs immigration officers not to deport DACA recipients, and has already done away with the policies that direct officers not to detain or remove noncitizens who haven’t been convicted of crimes. The result is that DACA recipients will be at risk of removal if they happen to be at the wrong place at the wrong time.

Some of the administration’s gaslighting is relatively low stakes. This is not one of those times.




* For example, when news leaked that the Trump administration would be rescinding DACA, I wrote that “The reasons Trump has given for (apparently) ending DACA don’t hold up all that well.” After unpacking and examining those reasons, I surmised that “[r]escinding DACA either caters to a base that wants the United States to be unthinkably cruel to immigrants, or fulfills [some] officials' desire to force immigrants into hopeless, difficult situations.”

**As Greg Sargent and others have repeatedly said over the last few weeks (Greg has been all over this thankfully),  the Trump administration's behavior (or at least some members of the Trump administration) and the Republicans' conduct (or at least some members of the Republican caucus who aren't Lindsay Graham) “betray[] their real sentiments” on DACA—namely, that they don’t want to protect DREAM-ers (DACA beneficiaries) at all, not that they view DACA as inconsistent with the separation of powers or the proper scope of administrative rulemakings.

***That could change, depending what happens to the program.

****The official statement also uses the phrase “obstructionist losers,” but that’s a point for another day.


Disclosure:  I am among the counsel to the DACA recipients challenging the rescission of DACA, and among the counsel to one of the DACA recipients (Daniel Ramirez Medina) who ICE is attempting to remove.


Versus Trump: California Versus The Wall [UPDATED WITH EPISODE]

3/8/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie discuss a recent district court opinion that rejected California's challenge to the Trump Administration's expedited border wall projects in California. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Versus Trump: Russia Check-In

3/1/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie check back in with the most politically charged of all Versus Trump suits: the Russia investigation. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

The First DACA Rescission Was Arbitrary and Capricious. Will the Next One Also Be?

2/16/18  //  Commentary

Should Congress adopt a permanent fix to DACA in the coming days, the preliminary injunction will prove unimportant. But given deep divisions within and among the parties, that is hardly a sure thing. Accordingly, the ruling warrants careful study.

Michael C. Dorf

Cornell Law School