No Secretary Kelly, The Immigration Law Does Not Deport People, You Do

David Leopold
3 min readJun 5, 2017
Via (WikiMedia Commons)

Homeland Security Secretary John Kelly is either deliberately misleading the American people, or he’s been duped. The former Marine Corps general and commander of the United States Southern Command has allowed himself to become Donald Trump’s “yes man,” carrying out the President’s roundup of undocumented immigrants across the U.S. like a buck private.

Kelly, whose military career was built on making smart decisions, has allowed himself to become the poster boy for Trump’s oppressive scheme to cleanse America of all 11 million undocumented immigrants and close its borders to refugees and Muslims. We know this because Kelly has all but said so himself, shirking any personal responsibility for the human toll of DHS’s cruel deportation campaign with the lame excuse that “the law deports people,” not he or ICE.

In reality, Kelly has the unquestionable authority to order his agents to focus on the removal of felons instead of the destruction of families. The U.S. Supreme Court has recognized the Secretary’s power to stop deportations based on the “equities of an individual case” taking into consideration “many factors, including whether” a person “has children born in the United States, long ties to the community, or a record of distinguished military service.”

In other words, the law doesn’t rigidly deport people as Kelly claims. Kelly rigidly deports people by refusing to exercise “prosecutorial discretion” based on notions of justice, fairness and, yes, common sense. Every law enforcement professional is familiar with the use of discretion, except, apparently, Kelly. That’s why it’s hardly surprising that many law local officials around the country have decried Kelly’s aggressive tactics for making their communities less safe.

This includes people like Maribel Trujillo of Fairfield, Ohio, a mother of four U.S. citizen children who was arrested by federal agents and deported. And Jose Escobar, an undocumented husband of a US-citizen wife and father of a US-citizen baby, who was removed after he showed up for his annual ICE check-in appointment. Neither of these parents were the “bad hombres” that Trump talks about. They were part of the 38% increase in undocumented immigrants arrested since Trump took office, including a whopping 156% jump in arrests of immigrants who are law abiding members of their communities.

Secretary Kelly himself issued the draconian orders trashing President Obama’s immigration enforcement priorities which targeted felons and security threats over undocumented immigrants with strong ties to the U.S. Kelly all but directed ICE agents to round up any undocumented immigrant they encounter and arrest them no matter how long they’ve been here or how much value they’ve contributed to the economic and social fabric of their communities.

Kelly might as well have just written to his agents “The heck with ‘bad hombres,’ let’s go after the low hanging fruit.”

Which is exactly what they’re doing. In Ann Arbor, Michigan last month the ICE Deportation Force arrested three kitchen workers at Sava’s restaurant, based solely on racial profiling. But not before the agents sat at the counter and enjoyed a hearty breakfast. The only ICE enforcement priorities on display that morning were dining, discriminating, and detaining.

Kelly and his ICE Deportation Force may take refuge behind the technicalities of an outdated immigration statute but the courts are beginning to recoil at the injustice of tearing apart families in the name of the law. Last week, in a scathing opinion, Ninth Circuit Appeals Court judge Stephen Reinhardt blasted the Trump administration for claiming it’s targeting criminals while focusing on people like Magana Ortiz, a 45 year old Hawaii businessman who’s lived in the U.S. for decades and whom the judge described as “a pillar of his community and a devoted father and husband.” “President Trump” Reinhardt wrote, “has claimed that his immigration policies would target the “bad hombres” but, the judge concluded, “even the ‘good hombres’ are not safe.”

The truth is Kelly can do more than parrot the administration’s anti-immigrant talking points while mindlessly carrying out Trump’s unconscionable assault on immigrants –undocumented and documented alike. He can choose to live up to his sworn oath to the American people to keep the nation safe by focusing on felons and security threats, not undocumented parents, grandparents, and Dreamers.

Or not.

The choice (and legacy) are his.



David Leopold

Chair, #Immigration Law, Ulmer & Berne LLP, litigator, bylines @USAToday, @CNNOpinion, @msnbc @thehill @tpm @huffpost @HoustonChron, fmr pres @AILANational