Fault Lines
29 April 2017

Section 5 Of Trump’s EO = Every Non-Citizen Is An “Enforcement Priority”

January 30, 2017 (Fault Lines) — Considerable space has been spent at Fault Lines breaking down President Trump’s ambitions and Executive Orders when it comes to immigration and deportation of non-citizens. To date, Trump’s plans and the possible consequences for “illegals” have failed the logistical test, and thus with a hand in heart intellectual honesty, the voices of reason and experience have (hopefully) brought some comfort to those who were susceptible to the shrieks coming from the hysterics.

But, there’s a section within Trump’s insufferably named “Enhancing Public Safety in the Interior of the United States” EO that brings cause for concern. It’s Section 5 of the order, which reads as follows:

Sec. 5 Enforcement Priorities.  In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress, as well as removable aliens who:

(a)  Have been convicted of any criminal offense;

(b)  Have been charged with any criminal offense, where such charge has not been resolved;

(c)  Have committed acts that constitute a chargeable criminal offense;

(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e)  Have abused any program related to receipt of public benefits;

(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

For starters, subsection (a) throws whatever’s left of ICE’s prosecutorial discretion out the window. The word “any” means that all criminal convictions, ranging from jaywalking to homicide, trigger an enforcement priority and the expenditure of government resources for detainment and deportation. It’s a federal mandate to snare any and all convicts, no matter how small the peccadillo. Forget about cruel and capricious: this is naïve and grossly irresponsible behavior coming from the Commander-in-Chief.

Immigration detention centers have been overcrowded and in decrepit condition for some time now, with inmates being held for indeterminate periods of time. The previous administration’s 2014 guiding memorandum with regards to the apprehension of “aliens” left some wiggle room when it came to minor offenders. That’s no longer the case, as any and all who’ve been convicted of a minor crime are mandated to be put in an ICE cage. Think ICE and CBP agents will use their experience and “common sense” to ease the transition to this new era? Think again, as they’ve recently thumbed their noses at an Order from (at least in theory) an omnipotent Article III Judge. Enforcers gonna enforce, robed jurists be damned.

More shocking is subsection (b), which prioritizes those who’ve been charged with a crime and “where such charge has not been resolved.” This means that — and the government must be taken at its literal word — those whose charges are pending before any court or tribunal anywhere in the world are fair game to be collared by ICE or DHS. Got a reckless driving charge pending in misdemeanor court, but no immigration status in the U.S.? That means you’re fair game for detention or removal, as per Trump’s EO.

Subsections (c) through (f) have, to a large extent, already been in place for some time, even when it came to former Secretary Johnson’s 2014 “lenient” memorandum. Having an outstanding order of removal from the U.S. has always deemed someone an ideal candidate for deportation. Thousands of Cuban nationals were, until they were the subject of one of Obama’s parting shots, exempt from this.

But when it comes to governmental capriciousness and cynicism, subsection (g) delivers in spades. A non-citizen is an enforcement priority so long as “in the judgment of an immigration officer, otherwise pose[s] a risk to public safety or national security.” Boom. This is the catch-all provision of Trump’s EO.

Like most people — and yes, they’re human beings, no matter what those disgruntled “aliens” may say — immigration officers come in all shapes, sizes and temperaments. Some have the privilege of serving as adjudications officers at a cushy USCIS office, while others are sent to your nearest airport to deal with the latest wave of huddled masses coming from abroad.* Depending on the time, mood, breakfast choices, and an officer’s most recent encounter with her spouse, can determine how a foreign national is handled on any given moment.

Subsection (g) gives an immigration officer the proverbial carte blanche to brand any non-citizen an enforcement priority. Anything can be deemed a threat to “public safety” or “national security,” so long as you’ve got the creativity of a bureaucratic screw.

Got one DUI conviction on your record? That’s enough to drive (no pun) anyone MADD and send you to the immigration can. Facing a (gasp!) “gravity knife” charge in America’s most progressive city (and home to the 2020 Democratic Party’s presidential nominee)? Begone with you, and whatever you bring to enhance America’s charm of the ethnic mosaic.

Trump’s EO that banned nationals from seven countries triggered instant chaos in America’s airports. But it’s section 5 of his January 25 EO that is bound to bring some additional dystopia for America’s immigration enforcement system in the long run, should immigration officials stick to their guns and use this legal bludgeon to its full extent.

*Many USCIS officers who handle residency and naturalization applications are former CBP agents. Many of them consider it a lot less stressful than being in the field and dealing with arrivals who’ve endured several layovers, even when those arrivals have been provided the aid and comfort of a Virgin Airlines first-class lounge.

3 Comments on this post.

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  • Richard G. Kopf
    30 January 2017 at 12:17 pm - Reply

    Mario,

    As I suggested to our mean-ass editor,

    “[W]atch as the federal courts in Hispanic-heavy states like Nebraska begin seeing even more illegal reentry after deportation cases triggered by such monsters as a tipsy driver who stopped at the bar after an eight-hour shift on the kill floor of a packing plant. Like dance partners, federal judges react with time served sentences under the ‘fast track’ departure and removal provisions.

    With new $200 papers, and despite the bus ride across the Rio Grande, the offender will be back to work at another packing plant in a couple of weeks, wall or no wall. He will also continue to consume a few cervezas after work in order to make his job seem less hellish.

    And America will be safe again. All the best.”

    RGK

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    31 January 2017 at 9:15 am - Reply

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  • Trump’s most forceful executive order on immigration isn’t the immigration ban | Business Insider
    4 February 2017 at 5:16 pm - Reply

    […] The broad list of criteria would apply to essentially every immigrant living in the US illegally, making them all an “enforcement priority,” according to Mario Machado, a Florida-based criminal defence and immigration attorney who wrote about the order for the legal-news website Mimesis Law. […]