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DHS Issues Two New Immigration Enforcement Memos


John Kelly, Secretary of the Department of Homeland Security (DHS), has signed two new memoranda that implement two of President Trump’s recent immigration executive orders. The DHS memos call for strict enforcement of immigration laws, stepped-up detentions, and enhancement of expedited removal, among other things. As part of the new enforcement efforts, U.S. Immigration and Customs Enforcement (ICE) will seek funding to hire 10,000 new officers and agents and the Border Patrol will seek funding to hire 5,000 new agents.

Among other things, the DHS memos clarify that:

  • Anyone who has committed any immigration violation is now at risk of being put into deportation proceedings.
  • Many more people will be detained under the new guidelines.
  • DHS will expand its 287(g) program to allow state and local police to identify and hand over suspected immigration violators.
  • DHS will expand its existing expedited removal program so that many more people will be immediately removed without a hearing unless they are an unaccompanied minor, intend to apply for asylum or have a fear of persecution or torture in their home country, or claim to have lawful immigration status. Previously, expedited removal only applied to people who were caught within 100 miles of the border within 14 days after entering the country. Now expedited removal will apply to people who have been in the United States for less than two years. A Federal Register notice will soon follow to make this change.
  • The executive orders and implementing memos do not affect the Deferred Action for Childhood Arrivals (DACA) program.

Below are details of the two memoranda:

Memo implementing “border security” executive order. A memorandum issued on February 20, 2017, from Mr. Kelly to U.S. Customs and Border Protection (CBP), ICE, and U.S. Citizenship and Immigration Services, among others, implements the “Border Security and Enforcement Improvements” executive order signed by President Donald Trump on January 25, 2017. The memo calls for detention of people arriving at the borders pending final removal determinations. The memo also ends “catch-and-release” policies and states that discretionary parole authority may be exercised only on a case-by-case basis and only for urgent humanitarian reasons or significant public benefit. Among other things, the memo calls for a “surge” in deployment of immigration judges and asylum officers to interview recent border entrants and adjudicate their claims, and the establishment of “appropriate processing and detention facilities.”

The memo also orders immigration officers who determine that an arriving person is inadmissible to the United States under INA § 212(a)(6)(C) or (a)(7) to order the person removed from the United States “without further hearing or review” unless the person is an unaccompanied alien child, indicates an intention to apply for asylum or a fear of persecution or torture or a fear of return to his or her country, or claims to have a valid immigration status within the United States or to be a citizen or national of the United States.

The memo states that as DHS works to expand detention capabilities, detention resources should be prioritized based on potential danger and risk of flight. The guidance “does not prohibit the return of an alien who is arriving on land to the foreign territory contiguous to the United States from which the alien is arriving pending a removal proceeding.”

The memo also calls for enlisting state and local law enforcement agencies and personnel to assist in the enforcement of federal immigration law. Among other things, the memo also calls for identification and allocation of funding sources to build a wall along the southern border.

Memo implementing “public safety” executive order. A second memorandum also issued on February 20, 2017, from Mr. Kelly to U.S. Customs and Border Protection (CBP), ICE, and U.S. Citizenship and Immigration Services, among others, implements the “Enhancing Public Safety in the Interior of the United States” executive order signed by President Trump on January 25, 2017.

The memo states that with the exception of the June 15, 2012, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” and the November 20, 2014, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents,” all existing conflicting directives, memoranda, or field guidance regarding the enforcement of U.S. immigration laws and priorities for removal are immediately rescinded, including the November 20, 2014, memoranda entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” and “Secure Communities.”

The memo states plainly that other than Deferred Action for Childhood Arrivals (DACA) beneficiaries, DHS “no longer will exempt classes or categories of removable aliens from potential enforcement.” Among other things, the memo states that DHS personnel should prioritize for removal “criminal aliens” and those who: (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense; (4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; (5) have abused any program related to receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The memo also states that DHS “will no longer afford Privacy Act rights and protections to persons who are neither U.S. citizens nor lawful permanent residents.”

Meanwhile, in other news, there are rumors that a revised travel ban executive order will be issued shortly. Stay tuned.

Links to the executive orders and related fact sheets, the two DHS memos, press releases, and additional information are here.

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Ivener & Fullmer LLP, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.

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