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Secretary of Homeland Security Issues Memos to Implement President Trump's Immigration Enforcement Orders

On February 20, 2017, Secretary of Homeland Security John Kelly issued two memos that provide guidance to Department of Homeland Security (DHS) officers and employees in implementing two of the Executive Orders announced by President Trump on January 25, 2017. The agencies of DHS subject to this guidance are U.S. Customs and Border Protection (CBP), which includes the Border Patrol, U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). The memos are available here.

A summary of the memos follows:

Enforcement of the Immigration Laws in the Interior of the United States

  • Rescinds and supersedes all conflicting existing policy, directives, memoranda, and other guidance, with the exception of President Obama's June 15, 2012 Executive Order authorizing Deferred Action for Childhood Arrivals (DACA) and November 20, 2014 Executive Order expanding DACA and authorizing Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Note: The memo states that DACA and DAPA will be addressed in future guidance.
  • Instructs that no classes or categories of removable aliens will be exempt from potential enforcement actions.
  • Calls for the hiring of 10,000 new ICE officers and agents.
  • Prioritizes enforcement actions against aliens who are removable for criminal convictions, terrorist activity, threats to public safety or national security, fraud or false claims to US citizenship, and arriving aliens without valid documents.
  • Prioritizes removal of aliens who (1) have been convicted of a crime; (2) have been charged with a crime; (3) have committed acts which constitute a chargeable offense; (4) have engaged in fraud against a government agency; (5) have abused public benefits programs; (6) are subject to a final order of removal; or (7) pose a risk to public safety or national security.
  • Terminates the Priority Enforcement Program and restores the Secure Communities Program.
  • Calls for expansion of the Criminal Alien Program (CAP) and Institutional Hearing Program (IHP), which authorize removal proceedings against aliens who are incarcerated in federal, state, or local prisons.
  • Calls for expansion of the "287(g) Program," which authorizes state and local law enforcement to cooperate with DHS in enforcing federal immigration laws. Note: Participation in the 287(g) Program is voluntary and state or local jurisdictions may either agree or refuse to provide such assistance.
  • Directs that prosecutorial discretion is to be exercised only on a limited, case-by-case basis and that no class or category of aliens will be exempt from enforcement actions.
  • Establishes the Victims of Immigration Crime Engagement (VOICE) Office to be a liaison between ICE and "known victims of crimes committed by removable aliens." Eliminates all advocacy programs for "illegal aliens" and shifts available resources to the new VOICE office.
  • Calls for the assessment and collection of fines and penalties from aliens and "those who facilitate their unlawful presence in the United States."
  • Eliminates Privacy Act protections to any person who is not a U.S. citizen or lawful permanent resident (LPR), to allow for greater sharing of personal information maintained in DHS record systems. Note: It is unclear at this time what this means in terms of privacy of information for those who are in the U.S. on a temporary Visa.
  • Calls for detailed reporting of all aliens apprehended by ICE and the disposition of their cases, including country of citizenship, convicted criminals and nature of their offenses, gang members, prior immigration violators, custody status of aliens, reasons for release of aliens, aliens ordered removed, and aliens physically removed.
  • Calls for weekly public reporting of jurisdictions that release aliens from custody in defiance of ICE detainers or custody requests. Note: This provision targets so-called "Sanctuary Cities" that refuse to cooperate in enforcing federal immigration laws. The term "sanctuary city" has no clear meaning, but generally refers to cities and localities that either do not request immigration status information in law enforcement interactions or do not honor ICE requests to hold immigrants in local jails to be transferred to ICE custody.

Implementing the President's Border Security and Immigration Enforcement Improvements Policies

  • Rescinds and supersedes all conflicting existing policy, directives, memoranda, and other guidance.
  • Mandates detention of all arriving aliens who are "deemed inadmissible" (i.e., undocumented border crossers) for the duration of their removal proceedings.
  • Calls for an increase in deployment of Immigration Judges and Asylum Officers to the southern border to adjudicate claims by recent border entrants.
  • Calls for establishment of processing and detention facilities to detain apprehended aliens, who may be released from custody on a case-by-case basis only when the alien is:
  1. Removed from the United States;
  2. Granted relief from removal or determined to be a U.S. citizen or national, lawful permanent resident, refugee or asylee, or person holding Temporary Protected Status (TPS) or other valid immigration status;
  3. Permitted to withdraw an application for admission and immediately departs;
  4. Entitled to release by statute, settlement agreement, or other judicial or administrative authority;
  5. Granted parole under INA §212(d)(5); or
  6. Determined to have a credible fear of persecution or torture by an asylum officer or Immigration Judge.
  • Instructs agency components of DHS to promulgate regulations consistent with this new guidance.
  • Provides that until sufficient space is available to detain all arriving aliens, priority will be given to those who pose a potential danger or flight risk, and in the meantime parole will be considered under current regulations and guidance.
  • Calls for the hiring of 5,000 new Border Patrol Agents and 500 new Air and Marine Agents.
  • Instructs agency heads to "identify and quantify all sources of direct and indirect Federal aid or assistance to the Government of Mexico" and submit a report within 30 days. Note: We assume at this time that this information will be used in efforts to pressure Mexico to pay for construction of a border wall.
  • Expands the "287(g) Program," which authorizes state and local law enforcement to cooperate with DHS in enforcing federal immigration laws. Note: Participation in the 287(g) Program is voluntary and state or local jurisdictions may either agree or refuse to provide such assistance.
  • Calls for a comprehensive study of border security.
  • Calls for construction of a border wall along the U.S.-Mexico border.
  • Calls for expedited removal under INA §235(b) of inadmissible arriving aliens (i.e., undocumented border crossers) who have been physically present in the U.S. for less than two years. Note: Previously, expedited removal was focused on aliens present in the U.S. for less than two weeks and apprehended within 100 miles of the border.
  • Calls for the return of arriving aliens from a "contiguous foreign territory" (i.e., Mexico) pending the outcome of their removal proceedings, which will be conducted via video teleconference.
  • Provides guidance on conducting "credible fear" interviews and calls for enhancement of fraud detection, deterrence, and prevention measures in the credible fear process.
  • Calls for expansion of detention facilities at or near the U.S.-Mexico border and for prompt adjudication of asylum claims by detained aliens.
  • Eliminates the practice of granting parole under INA §212(d)(5) - including advance parole - to certain designated groups, and authorizes parole to be granted only on a case-by-case basis for urgent humanitarian reasons or significant public benefit.  Note: It is assumed at this time that advance parole, routinely, granted when applying for an I-485 Adjustment of Status petition ("green card") is not imported.
  • Calls for unaccompanied alien children (UACs) to lose that status - and the attendant benefits including a hearing before an Immigration Judge and access to certain social  services - upon being placed in the care of a parent, irrespective of the parent's immigration status.
  • Instructs DHS officials to take enforcement action against parents and family members of UACs who may have facilitated their children's entry into the U.S., including placing such parents and family members in removal proceedings and prosecuting them for alien smuggling or trafficking.
  • Calls for establishment of a multi-agency task force to target individuals and organizations engaged in criminal activity at or near the border, including drug cartels and alien smuggling rings.
  • Calls for public reporting of DHS statistics on apprehended aliens, including the percentage that are criminals, gang members, or prior immigration violators, and on the number of aliens ordered removed and actually physically removed.

For more information, please contact James E. Morrison at (202) 572-8670 | jmorrison@clarkhill.com, Michael P. Nowlan at (313) 965-8666 | mnowlan@clarkhill.com, Thomas K. Ragland at (202) 552-2360 | tragland@clarkhill.com, Patrick Taurel at (202) 772-0903 | ptaurel@clarkhill.com, or another member of Clark Hill's Immigration Practice.