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How Trump Leveraged 'Discretion' Of Courts And Law Enforcement To Take On Immigration

Gabriel C. Pérez

Since his inauguration, President Donald Trump has kept his campaign promises of tougher immigration policies, leading to a constant flow of policy changes — from scaling back on programs like Deferred Action for Childhood Arrivals to his “zero-tolerance” policy along the border that’s led to separation of parents and children attempting to cross into the U.S.

All of these individual actions amount to a broader strategy that is now becoming clear.

Kate Voigt, associate director of government relations at the American Immigration Lawyers Association, says the strategy has come in waves.

“He essentially grew the undocumented population by shrinking the number of people who are protected by deportation,” Voigt said, adding the president did so by both scaling back DACA and rescinding certain conditions for temporary protective status for those seeking asylum in the U.S.

The second wave, she says, came in the form directives to courts.

Voigt says the Department of Homeland Security directed Immigration and Customs Enforcement attorneys to oppose closing cases administratively, which was more often than not how low-priority cases were settled in previous administrations.

Attorney General Jeff Sessions eventually went so far as to strip power from the courts to administratively close any case, regardless of priority. Cases that were once considered a low priority under the Obama administration are now fair game for federal prosecutors.

Those directives mean more arrests and detainments of undocumented immigrants, but they also mean judges are granting bail less often.

“We’ve definitely gotten a lot slower. Meaning immigration is not giving as many bonds as before,” says Margie Wolf, who runs US Immigration Bonds, a company that puts up cash for immigrants that have been detained and told to show up later for a court date.

She’s been working in the immigration bonds industry for nearly 20 years with a staff of fellow immigrants. In the wake of more aggressive courts, her business has taken a hit, with the courts issuing fewer bonds for higher amounts.

Wolf says many migrants dread their court appearance, and, she says, some who are released on bond often flee and don’t show up to court.

“So, economically, it’s also hurting because, again, people are very scared,” she says.

With a larger population to deport and the courts now processing more immigration cases, law enforcement agencies, such as ICE and Customs and Border Protection, ramped up operations.

After eight years of declining arrest numbers, ICE arrests dramatically increased in 2017, with over a 143,000 arrests being made that year. CPB, directed by Attorney General Jeff Sessions, adopted a “zero-tolerance” policy illegally crossing into the U.S., which was met with bipartisan criticism.

President Trump responded by saying the administration’s hands were tied and that Sessions was merely following the law to the letter. 

“He’s following laws that ... were forced on us by the Democrats,”">Trump said in June.

On the surface level, the president isn’t wrong. Immigration law on the books has hardly changed at all in the last decade, but how those laws are enforced has – namely, how strictly law enforcement adheres to the letter of the law.

“There is simply too much law to be enforced,” says Dr. Phillip Lyons, a former police officer and dean of the College of Criminal Justice at Sam Houston State University. Lyons says, regardless of jurisdiction, no law enforcement agency has to enforce every law.

In fact, law enforcement officials possesses a lot of latitude in determining which laws they want to enforce – and how. It’s this same discretion that is used every day when police decide not to give speeding tickets to someone who’s rushing to the hospital, or when the Drug Enforcement Administration turns a blind-eye to states that have legalized marijuana despite a federal prohibition.

But these memos and directives have required agencies like ICE and CBP from ignoring low-level immigration violations like they did in previous administrations.

Lyons says discretion provides law enforcement options to direct their often-limited resources.

“I do know, if we are spending all of our time focusing on illegal border crossings, that means there is a lot of time not being spent on something else,” he said.

The Trump administration has alluded to a need for more resources to cover all its bases, with the President promising to bolster Border Protection personnel to enforce its new and hawkish approach. That could, theoretically, fill in the gaps, allowing those agencies to enforce all laws within its jurisdiction. However, Lyons says that boost in funding and enforcement could complicate things going forward.

“Put aside the specific instance of ICE, it seems to me as though that, if you have law enforcement agency that is big enough to enforce every law that’s under its jurisdiction, then you simply have a law enforcement agency that is way too big.”

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