A proposal to change who is considered a “criminal alien,” inadvertently leaked by a leading candidate to be President-elect Donald TrumpDonald TrumpBiden heading to Kansas City to promote infrastructure package Trump calls Milley a 'f---ing idiot' over Afghanistan withdrawal First rally for far-right French candidate Zemmour prompts protests, violence MORE's secretary of Homeland Security, could drastically change how foreigners in the United States are identified for deportation.
Kansas Secretary of State Kris Kobach, a well-known immigration hard-liner, was photographed Sunday outside a meeting with Trump holding a document titled “Department of Homeland Security Kobach Proposal for First 365 Days.”
Kobach is believed to be under consideration to head the Department of Homeland Security (DHS) under Trump.
The document was partially hidden by Kobach's hand, but its first two sections, dealing with barring entry of potential terrorists and deportation of a record number of criminal aliens, were mostly legible.
While the legible portions had specific proposals, it is unclear if the document expanded on them further. The rest of the document was not made public.
In the deportation section, the document reads, “...'criminal alien' as any alien arrested for any crime, and any gang member.”
Under DHS regulations, “criminal aliens” are foreign citizens convicted of specific categories of crimes, or suspected of others, such as terrorism or falsely claiming United States citizenship.
Since the label is equally applicable to documented and undocumented non-citizens in the country, changes to the definition would affect any foreigner visiting or residing in the United States.
Critics say lowering the bar on deportable offenses to arrests — as opposed to indictments or convictions — would enable authorities to deport non-citizens based on the spot judgment of individual law enforcement officers.
“There would be a serious due process question. For most minor offenses, even traffic offenses, an individual officer has discretion whether to issue a citation or arrest [a suspect],” said Barry J. Pollack, president of the National Association of Criminal Defense Lawyers.
While foreigners in the country do not have the same political rights as citizens, they do have a right to due process.
“If this is what is being proposed, it would make any alien a criminal alien,” Pollack added.
Trump pledged in a “60 Minutes” interview last week that he would prioritize the removal of “probably two million, it could be even three million” criminal aliens.
The DHS estimates there are about 1.9 removable criminal aliens in the country.
Those criminal aliens include both documented and undocumented immigrants who have been convicted for felonies or multiple or serious misdemeanors, and those who have committed criminal violations of immigration law.
An analysis by the Center for Immigration Studies (CIS), a think tank that promotes reduced immigration, estimates there are a further 940,000 aliens who have been ordered deported, but have evaded authorities.
Deportations have plummeted since 2014, when the Obama administration shifted its priority to criminal aliens.
Under Obama, 2.4 million people were deported between 2009 and 2014.
Immigrant-rights groups opposed the massive deportation scheme, and DHS enacted the policy shift, a move that was partly responsible for the drop in deportations since 2014, according to the Pew Research Center.
ICE deported 235,413 people in fiscal 2015, and 91 percent of them were connected to a crime. In 2014, 86 percent of deportations were related to crimes, and in 2011, only 67 percent were related to crimes, according to a DHS report.
But critics say enforcement has been inefficient, and have accused the administration of cooking the books to achieve its deportation numbers.
Jessica Vaughan, director of policy studies at CIS, proposed in an article last week the return of several expedited deportation measures that essentially allow authorities to plea-bargain removal with foreigners under arrest or indictment.
The measures, although still on the books, were curbed by DHS guidelines after immigrant rights groups complained of abuse and violations of due process.
Despite those concerns, proponents of returning summary removal measures say they would help reach Trump's stated goal of two to three million criminal deportations.
Still, those measures fall short of a blanket redefinition of criminal aliens.
Amplifying the definition would provide ICE with a larger sample of foreigners to achieve higher deportation numbers, but it would distract resources from persecution of dangerous criminals, said Pollack.
“Rather than removing from the country people who have committed serious crimes, it would result in any alien, regardless of how long they’ve been in the country, being removed for any offense, however minor,” he said.
Other critics said the rules could make it harder for law enforcement to get cooperation from immigration communities.
“Communities of color already have a lot of friction with law enforcement, and now you’re going to add this fear,” said Lizet Ocampo of People For the American Way, a liberal advocacy group.
“If people are afraid of the police, then they’re not going to report a crime.”
Kobach, the author of several state immigration bills, has become a favorite target of immigration advocacy groups for his hardline positions on the issue.
Many of Kobach's immigration bills, such as Arizona's controversial SB-1070 law, have been stripped of key provisions by the courts on grounds of constitutionality.
Kobach did not respond to several requests for comment.
“Given his track record and what we've seen of his immigration proposal, we are certain that any changes Kobach proposes will not be good for immigrants, and we will fight him in the courts and in the streets to ensure the safety of our community,” said Pili Tobar, director of communications and advocacy at Latino Victory Fund.
Pollack said Kobach's proposal would be “of questionable legality” and would trigger “immediate challenges as to whether that policy is lawful.”
“There’s certainly an irony that someone who would consider himself a candidate for DHS is not able to put a confidential document in his briefcase,” said Pollack of the leak.