The immigration-enforcement guidance issued by President Trump Tuesday morning patently aims to shift the presumption against deportation created by President Obama’s guidance.
In 2014, under the guise of setting out “immigration enforcement priorities,” Obama’s Department of Homeland Security established a three-tier system for deportation. This was quite advisedly done under the rubric of “prosecutorial discretion.” Federal agents were instructed to apply prosecutorial discretion as early in the evaluation process as possible, mindful of how sparse were resources to arrest, detain, and deport removable aliens.
The message was clear: If an alien does not fit into the top tier, do not even bother to stop and question him, much less to arrest and commence deportation proceedings. While Obama’s two lower tiers were referred to, in an Orwellian way, as “priorities” (i.e., enforcement “Priority 2” and “Priority 3”), the reality was more like immunity.
Obama’s “Priority 1” was generally labeled “threats to national security, border security, and public safety.” It included aliens engaged in terrorism, espionage, or otherwise posing a national-security threat; involved in gang violence; convicted of serious felonies; or apprehended in the act of entering the country.
Notice the effort to undermine illegal immigration as a basis for taking action. Priority 1 involved offenders who either (a) would be sought by police and national-security agents for reasons having nothing to do with their immigration status, or (b) were not illegal aliens residing in the U.S. because they never (or barely) made it into the country. The underlying (though unstated) principle is that illegally entering or remaining in the United States is not a serious matter per se; rather, it is egregious criminal activity that warrants enforcement action.
Of course, the nature of criminal activity addressed in “Priority 1” was so heinous that law-enforcement would naturally take action without regard to whether the perpetrator was an American or a non-American (legal or illegal). The subliminal point was to eradicate illegal-alien status as a salient consideration — yet to be able to say that enforcement against it was considered a “priority.”
Obama’s second tier addressed the “priority” of “misdemeanants and new immigration violators.” The thrust of this tier, however, was to give the illegal alien a defense against enforcement action. For example, an alien convicted of two misdemeanors, far from being an enforcement priority, was given immunity — agents were told that, for action to be taken, there should be three or more misdemeanors — and that these crimes had to (a) be unrelated to the alien’s illegal status, and (b) involve three separate incidents (i.e., multiple misdemeanors arising out of the same criminal transaction would count as only one conviction). Here, it is important to note that many felony arrests are reduced to misdemeanors in plea bargaining. Thus, this system was designed to insulate from deportation habitual criminals who had managed to avoid felony convictions.
