DHS Immigration Guidelines Leave DAPA Gray Area

New immigration enforcement guidelines handed down this week by the Department of Homeland Security do not make clear whether people might be deported if they would have qualified for former President Obama’s executive amnesty.

Language in a memo issued by DHS Secretary John Kelly lacks clarity. On the one hand, the memo states that the department “no longer will exempt classes or categories of removable aliens from potential enforcement.” That would seem to include any of the roughly 11 million people living in the country illegally.

“We’re a little foggy on that issue.”

But in revoking Obama-era guidelines, the memo explicitly exempts the Deferred Action for Childhood Arrivals and the Deferred Action for the Parents of Americans programs that Obama created. Trump has left DACA in place, while the federal courts have blocked provisions of DAPA, including preventing the government from issuing work permits.

It remains to be seen how immigration authorities will treat DAPA-eligible illegal immigrants who have not committed crimes or fit another enforcement priority.

“We’re a little foggy on that issue,” said Chris Chmielenski, director of content and activism at NumbersUSA.

Representatives from the Department of Homeland Security did not immediately respond to an inquiry from LifeZette.

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Jessica Vaughan, director of policy studies at the Center for Immigration Studies, said the Trump administration likely is trying to signal that it will not abuse its discretion like the Obama administration did while reassuring DACA and DAPA recipients.

“They’re trying to kind of have their cake and eat it, too,” she said.

The implications could be significant, Chmielenski said. He noted that the Migration Policy Institute estimated 5 million illegal immigrants would fit the criteria for DAPA. Another 2.1 million are DACA-eligible, according to the think tank, although only about 750,000 have signed up.

The administration has been clearer about how it intends to handle DACA — at least for now. Trump has kept the order in place and the government continues to issue work permits. For the most part, Immigration and Customs Enforcement officials have left DACA recipients alone, although in a widely publicized case, ICE arrested Daniel Ramirez Medina in Washington State after authorities say he admitted to being a gang member. Medina denies that.

In a sign that ICE intends only to deport DACA recipients who fit one of the enforcement priorities, however, agents did not arrest Medina’s brother.

The policy outlined this week indicates that high-priority enforcement targets will continue to be the focus of ICE but that other illegal immigrants could still be deported if they come into contact with federal authorities through the normal course of enforcement.

“On a practical level, I think what they’re trying to say is just because someone has DACA is not going to necessarily exempt them from deportation,” Vaughan.

Would ICE officers treat low-priority, DAPA-eligible illegal immigrants like they are treating DACA recipients?

“The majority of them will be [in] more of a gray area,” Vaughan said.

Chmielenski said his guess is ICE will “make a case-by-case determination” without offering blanket protection.

Vaughan agreed. She said ICE likely will consider a number of factors. In places like Miami and Los Angeles and other places with heavy caseloads, she said, ICE will be more likely to decline arrests of low-priority illegal immigrants or issue notices for them to appear for immigration court hearings but allow them to avoid immediate detention.

Mark Krikorian, executive director of the Center for Immigration Studies, said nothing in the law precludes deportation of DAPA-eligible illegal immigrants, even if Trump leaves the policy in place. By not revoking the policy, he said, it keeps alive the chance that the courts could declare it unconstitutional and prevent future presidents from trying to bring it back.

“There’s a good reason to keep that in place, to try to get a court decision,” he said.

But Krikorian said he is troubled by what the Homeland Security memos do not contain — policies to encourage use of the E-verify system to ensure that new hires are eligible to work in the United States, or plans to ramp up enforcement at job sites. Trump spoke of both issues in his Jan. 25 executive order that formed the basis of this week’s guidance.

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“There’s no reference here to that,” he said.

Trump’s policies certainly represent an expansion of the enforcement priorities compared to the Obama administration, which mostly limited deportations to those convicted of serious felonies. Trump’s change has prompted moaning and wailing among pundits and activists on the Left. But Ira Mehlman, a spokesman for the Federation for American Immigration Reform, said it restores enforcement practices that had been the norm until recently.

“There seems to have developed this idea that to come under enforcement for an immigration violation, you have to commit some really serious offense,” he said.