In late January 2017, President Donald J. Trump issued a series of Executive Orders (EOs) dealing with immigration and border security. In response to these EOs, this week, the Department of Homeland Security (DHS) has issued several Implementation Memoranda and Fact Sheets to provide additional clarity on how they will implement the President’s directives.
These memoranda and fact sheets seek to clarify the government’s enforcement priorities in terms of removal (“deportation”) of individuals unlawfully present in the U.S. Specifically, in addition to hiring 10,000 additional agents and officers to carry out these new enforcement priorities, the documents indicate that, DHS will prioritize the removal of individuals who:
- Have been convicted of any criminal offense;
- Have been charged with any criminal offense that has not been resolved;
- Have committed acts which constitute a chargeable criminal offense;
- Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
- Have abused any program related to receipt of public benefits;
- Are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
- In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
While the memoranda state that they will not supercede prior guidance regarding discretion shown to DACA or DAPA recipients, they are clear that the enforcement priorities for the new administration will be different from, and much broader than, those of the Obama Administration, which were largely focussed on the removal of individuals with serious criminal convictions.
In addition, the memoranda make clear that this guidance is not a substitute for case-by-case review by Immigration Judges, who are normally tasked with determining whether an individual should be removed from the U.S. based on administrative court proceedings where they can present documents and arguments demonstrating their eligibility to remain in the U.S. However, in an apparent effort to reduce backlogs in the immigration courts, the memoranda also expands the use of “expedited removal” which permits DHS, in certain circumstances, to immediately remove an individual from the U.S. without allowing them to go before an Immigration Judge to present arguments as to why they should not be deported.
The memoranda also instruct DHS to provide training to Customs and Border Protection (CBP) agents regarding the proper granting of “parole” (permitting individuals without another basis to enter to U.S. to do so on a discretionary basis for urgent humanitarian reasons or reasons of significant public benefit, for example). Pending a more permanent regulatory solution, this directive is intended to prevent the practice of “granting parole to certain aliens in pre-designated categories in order to create immigration programs not established by Congress” (in other words, to prevent CBP agents from using parole to allow individuals to enter the U.S. who may not otherwise be admissible).
D&S notes that the above is merely a summary of some of the most far-reaching changes addressed in the memoranda, which address numerous facets of immigration enforcement and border security including building of a border wall, processing of unaccompanied minors, and data gathering and reporting requirements. Additional regulatory changes are expected in the coming weeks and months and D&S will continue to monitor and provide updates as they become available. In the interim, individuals who are concerned that they may be impacted by the government’s new enforcement priorities should contact an immigration attorney.