DHS Implementation Memos: Facts & What You Should Do
On February 20, 2017, the Department of Homeland Security (DHS) released two memos signed by DHS Secretary John Kelly that implement two executive orders signed by President Donald J. Trump on January 25, 2017. The memos lay out the policies and positions that DHS will take when interpreting and enforcing the immigration law in the United States. U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) are both under DHS.
1. Memo on Interior Enforcement: Enforcement of the Immigration Laws to Serve the National Interest
- Previously, DHS prioritized its detention and removal efforts against specific categories of people without lawful immigration status, for example, those with serious criminal records or those with recent orders of removal. The new memo rescinds all prior DHS memos on enforcement priorities (except those relating to Deferred Action for Childhood Arrivals (DACA)), making basically anyone without legal status in the U.S. an enforcement priority. The priorities include aliens who are inadmissible or subject to removal on criminal, fraud, and security grounds and those apprehended/detained at border areas, as well as anyone who:
- Has been convicted of any crime;
- Has been charged with any crime that has not been resolved;
- Has committed acts that constitute a chargeable crime;
- Has engaged in fraud or willful misrepresentation in connection with any official matter before a government agency;
- Has abused any program related to the receipt of public benefits;
- Is subject to a final order of removal, but has not departed; or
- Otherwise appears to be a risk to public safety or national security.
- Cancels the “Priority Enforcement Program” (PEP) and brings back “Secure Communities” (ICE Detainers) and calls for increase in local law enforcement cooperation with ICE to create enforcement “task forces” (the 287(g) program).
- Rescinds all prior guidance on Prosecutorial Discretion - directs DHS personnel to arrest, apprehend, and initiate enforcement actions against “any alien whom an immigration officer has probable cause to believe” has violated U.S. immigration laws. This potentially makes anyone without legal immigration status in the United States a priority. However, the memo also states that “DHS General Counsel will issue additional guidance on prosecutorial discretion for attorneys involved in immigration proceedings.”
- Establishes the Victims of Immigration Crime Engagement (VOICE) Office under the Office of the ICE Director to act as a liaison between ICE and “known victims of crime committed by removable aliens.”
- The Director of ICE is instructed to expeditiously hire 10,000 ICE agents and officers, in addition to support staff.
2. Memo on Border Security: Implementing the President's Border Security and
- Restricts the release of noncitizens detained under INA 235(b) [inadmissible “arriving aliens” and other noncitizens apprehended in the interior]. ICE and CBP are instructed to only release from detention people who:
- are being removed from the U.S.;
- are required to be released by law or a court order;
- become a U.S. citizen or hold other lawful immigration status;
- are determined to have a credible fear of persecution by an asylum officer or immigration judge and agree to comply with any conditions imposed by ICE upon release; or
- are paroled into the United States.
- Plans to hire 5,000 more CBP agents.
- Directs ICE and CBP to work with local law enforcement in border areas to assist in enforcement actions (“287(g)” agreements).
- States that DHS will publish a new rule expanding “Expedited Removal” (a controversial form of accelerated removal from the U.S. that does not involve the immigration court or an immigration judge) to cover the entire United States. Currently, DHS only applies expedited removal in a 100-mile border radius for someone who is within 14 days of entering the U.S. DHS can apply expedited removal to anyone who cannot establish that they have been continuously present in the country for the two years before being apprehended.
- Returning asylum applicants who arrive from contiguous countries (Mexico and Canada) back to the country they arrived from during immigration court (removal) proceedings. The memo states that asylum hearings may be performed by videoconference.
- States there will be additional guidance to tighten the definition/determination of “unaccompanied minors” at the border—criticizing the current policy where minors maintain their status as unaccompanied alien children, “notwithstanding that they may no longer meet the statutory definition once they have been placed by HHS in the custody of a parent in the United States who can care for the minor.”
- Suggests that parent(s) of unaccompanied children already in the U.S. may be prosecuted with alien smuggling/trafficking if they have paid for, arranged, or otherwise facilitated their child’s entry into the United States.
· Remain calm. The government needs time to determine when and to what extent the new policies will be implemented. Many of the directives contained in the memo require additional steps and approval before they can become finalized. For example, the proposed expansion of Expedited Removal must go through a formal notice-and-comment period before becoming a final rule.
· Reach out to your Margaret W. Wong & Associates attorney if you have any questions or concerns about your case.
· Make a contingency plan regarding the care of your children, relatives, and other dependents in the event that you are detained.
· Gather evidence showing that you have been in the United States for more than two years (tax returns, medical records, school records, etc.) and keep it in a safe place. Make sure your family members know where this information is.
· If you are detained, do not resist. Remember and write down your alien number (“A-number”) so you can tell your family and lawyer. You have the right to remain silent. You have a right to an immigration lawyer, although the government is not required to provide you one. Do not sign any papers that you do not fully understand. If you are afraid to return to your home country for any reason, you need to make this clear to the immigration officer.
· If you are already in removal proceedings, you are entitled to defend your immigration case in court.
· Do not lie about U.S. citizenship status or use fraudulent documents.
· Do not engage in any illegal activities, no matter how minor.
· Make your voice heard. Talk or reach out to public interest and immigrant rights groups.
· There is always hope. Stay positive.