On February 20, 2017, Department of Homeland Security (DHS) Secretary John Kelly signed two memoranda implementing President Trump’s Executive Orders on immigration enforcement, both at the border and within the United States, thus drastically increasing immigration enforcement nationwide.
Please note that the Memorandum dealing with interior enforcement specifically states that the June 15, 2012 DACA memorandum and the November 20, 2014 DACA+/DAPA memorandum are not rescinded.
Below, is a summary of the portions of each Memoranda having the most severe impact on foreign nationals.
The Memorandum implementing the Executive Order entitled “Enforcement of the Immigration Laws to Serve the National Interest,” states that the DHS will execute the immigration laws against all removable individuals and will no longer “exempt classes or categories of removable” individuals from enforcement. In other words – all removable individuals are a priority and subject to deportation.
The Memorandum lists individuals described in:
- INA § 212(a)(2) – criminal and related inadmissibility grounds;
- INA § 212(a)(3) – security and related inadmissibility grounds;
- INA § 212(a)(6)(C) – fraud, misrepresentation inadmissibility grounds;
- INA § 235(b) – expedited removal of inadmissible “arriving aliens” and other noncitizens apprehended in the interior;
- INA § 235(c) – expedited removal based on security and related grounds;
- INA § 237(a)(2) – criminal grounds of removal;
- INA § 237(a)(4) – security and related grounds of removal
- Removable aliens who:
- Have been convicted of any criminal offense;
- Have been charged with any criminal offense that has not been resolved;
- Have committed acts that constitute a chargeable criminal offense (includes minor infractions such as jaywalking or driving without a license, and may be applied to undocumented individuals for having committed the chargeable offense of improper entry);
- Have engaged in fraud or willful misrepresentation in connection with any official matter before a government agency;
- Have abused any program related to receipt of public benefits (according to the DHS’ FAQ’s, – abuse of a public benefit program includes “those who have knowingly defrauded the government or a public benefit system…”);
- Are subject to a final order of removal, but have not departed; or
- Otherwise pose a risk to public safety or national security.
The Memorandum also directs DHS to use their authority to remove individuals expeditiously, through the use of fast-track removal mechanisms for criminals. Prosecutorial discretion should only be used on a case-by-case basis and that DHS’ should initiate deportation proceedings as opposed to using prosecutorial discretion. DHS will no longer afford Privacy Act rights and protections to individuals who are not U.S. citizens nor lawful permanent residents.
The Memorandum implementing the Executive Order entitled “Border Security and Immigration Enforcement Improvements,” expands the detention of nearly everyone who is apprehended by immigration authorities, including those with no criminal convictions, and expands the expedited removal process which will be detailed in a notice in the Federal Register.
The Memorandum states that DHS will detain nearly everyone it apprehends including those with no criminal convictions, until they:
- Are removed from the U.S.;
- Are required to be released by statute or because of a binding settlement agreement or judicial order;
- Become a U.S. citizen or hold other valid immigrant status;
- Are found to have a credible fear of persecution by an asylum officer or IJ and agree to comply with any conditions imposed by ICE upon release; or
- Are paroled into the U.S. (parole must be approved by ICE or CBP, but is not needed in “exigent circumstances such as medical emergencies”).
Since detention of those described above may not be possible immediately, detention will be prioritized based on an individual’s dangerousness and flight risk potential.
The Memorandum also directs immigration authorities to expand expedited removal proceedings which is the removal of individuals in as little as 24 hours without the opportunity to appear before an immigration judge. Currently, use of expedited removal is limited to undocumented immigrants who are encountered within 100 air miles of the border and within 14 days of entry. Once details are published in the Federal Register, use of the expedited removal provision will apply to individuals who have been in the U.S. for up to two years and are encountered anywhere in the U.S.
In addition, those noncitizens arriving on land from Mexico and Canada, and placed in removal proceedings, may be returned to Mexico or Canada to wait for their removal proceedings, in lieu of being held in custody.
Parole authority will be used sparingly and only on a case-by-case basis.
DHS has published “Fact Sheets” and “Frequently Asked Questions” regarding the implementation and interpretation of President Trump’s Interior Enforcement and Border Enforcement Executive Orders and may be found at