In the past month, President Donald Trump has issued two executive orders spelling out exactly how he plans to speed up the deportation of immigrants--including immigrants with criminal records.
These two executive orders on immigration and deportation are titled "Border Security and Immigration Enforcement Improvements" and "Enhancing Public Safety in the Interior of the United States."
Below, we summarize the most important features of Trump's deportation plan for criminal immigration law:
Priority is given to deporting any immigrant with a criminal record
President Trump's order specifies that the Department of Homeland Security (DHS) should prioritize enforcement of immigration laws against all immigrants who have any deportable crime or inadmissible crime on their record.
Under the Obama administration, DHS followed a "Priority Enforcement Program." This meant that department resources were supposed to be focused on legal and illegal immigrants with certain kinds of particularly serious deportable crime convictions. (For example, top priority was given to immigrants with gang crime convictions, felony convictions or aggravated felony convictions. Second priority went to immigrants with three (3) or more misdemeanor convictions, or convictions for relatively serious misdemeanors such as drug trafficking or domestic violence.)
But under Trump's executive orders, this priority scheme has been overturned. Instead, Immigration and Customs Enforcement (ICE) officers are supposed to focus on deporting any legal immigrant who has a conviction for a deportable crime--even those who are deportable because of relatively minor controlled substances offenses.
It's important to note that any non-U.S. citizen with a deportable crime on his/her record is subject to deportation under U.S. criminal immigration law. This is true even of aliens who have legal status and have lived in the country for a long time--including lawful permanent residents ("green card" holders).
Illegal (undocumented) immigrants with any criminal conviction (no matter how minor the crime) will also be targeted for deportation.
Priority is given to deporting immigrants who have been charged with or committed crimes--even without a conviction
The DHS has stated that it will also prioritize the deportation of undocumented immigrants who
- have been charged with (but not yet convicted of) a crime, or
- have committed acts which constitute a chargeable crime.
In general, U.S. criminal immigration law does not make a legal immigrant (such as a green card or student visa holder) deportable unless s/he is actually convicted of a deportable crime. But ICE will also be focusing on deporting illegal immigrants who are merely charged with or suspected of committing any crime, even if they are never convicted.
Closer cooperation between local law enforcement and federal immigration authorities
The DHS under President Trump has also announced its intention to work more closely with state and local law enforcement agencies (police and sheriff's departments, highway patrol) to identify and deport non-citizens subject to deportation.
This enhanced cooperation will happen in two main ways.
First, the Trump administration will be reviving a program called "Secure Communities" that was abandoned by the Obama administration in 2014. Under Secure Communities, local jails are required to submit the fingerprints of all arrestees to federal immigration authorities.
This allows immigration authorities to identify people who may be deportable, either because of past criminal convictions or because of an immigration violation. After receiving the fingerprints, ICE can then ask the law enforcement agency to detain a suspect for 48 hours while it researches his/her immigration status.
Second, under President Trump the DHS plans to strengthen an initiative known as 287(g).
Under the controversial 287(g) program, local law enforcement agencies can enter into agreements with the federal government by which certain local officers are basically "deputized" as immigration enforcement officers. This allows local police officers who are part of the 287(g) arrangement to identify and detain immigrants for immigration law violations--not just criminal violations.
(The only California law enforcement agency currently participating in the 287(g) program is the Orange County Sheriff's Office.)
Many major cities in California are so-called "sanctuary cities"--which means that their police departments will not help immigration authorities identify deportable immigrants, including through programs like Secure Communities. And California passed a "Trust Act" law in 2013 that prevents local police departments from detaining suspects under the Secure Communities program unless they have a prior conviction for a relatively serious crime.
But the Trump administration has also threatened to crack down on sanctuary cities, perhaps by cutting off federal funds. It remains to be seen what role local law enforcement will end up playing in enforcing immigration laws in California over the next few years.
Considerations for immigrants with criminal records
There is no doubt about it--now is a frightening time to be an immigrant in America. If you have a criminal record, there is even more to be nervous about.
But there is hope. If this applies to you or a loved one, the California criminal immigration attorneys at Shouse Law Group recommend the following steps:
First, determine whether your criminal record actually makes you deportable. Not every crime is a deportable crime. Depending on the nature of the crime, though, it may require a lawyer's help to figure this out--particularly if you may have been convicted of a so-called "crime of moral turpitude."
Second, if you are deportable because of your criminal record, you should pursue the possibility of post-conviction relief with an attorney who understands the intersection between criminal and immigration law. While not all forms of post-conviction relief will eliminate the immigration effects of a conviction, there are certainly some that will (such as Padilla motions).