DHS Secretary, John Kelly, released a Memorandum on Feb. 20, 2017, implementing the executive order “Enhancing Public Safety in the Interior of the United States“ issued by President Donald Trump on Jan. 25, 2017. The Memorandum stipulates how the DHS will carry out the mandates of the executive order through the following actions:
- Rescission of all existing and conflicting directives, memoranda or field guidance, except those that are a part of the Deferred Action for Childhood Arrivals (DACA) program.
- DHS will intensify enforcement of immigration laws to aliens, who have committed any criminal offense or committed any act that constitutes a criminal offense, have committed fraud, abuse or willful misrepresentation in relation with any government agency or program, or otherwise pose a risk to public safety or the nation’s security.
- Restoration of the Secure Communities Program, and the expansion of the 287(g) Program.
- DHS personnel are to exercise prosecutorial discretion against all classes and categories of aliens, who are in violation of immigration laws.
- Establishment of the so-called Victims of Immigration Crime Engagement (VOICE) Office to increase communications between ICE and “victims” of crimes committed by removable aliens.
- Additional hiring of 10,000 Immigration and Customs Enforcement personnel.
- The issuance of guidance and regulation to ensure the imposition and collection of all legally attainable fines and penalties against illegal aliens and those who facilitate their unlawful presence.
- DHS will no longer afford Privacy Act rights and protections to those who are neither U.S. citizens nor legal permanent residents.
- ICE will collect and publicly report statistics and information regarding aliens convicted of crimes, including country of origin, nature of offense, release date, if released, and those “non-federal” jurisdictions that release aliens.
- No right or benefit enforceable at law is created.
Below is a more in-depth analysis of the above prescribed activities as highlighted in the Memorandum:
1. Rescission of Prior Conflicting Directives, Memoranda, or Field Guidance
The Memorandum makes it clear that all existing and conflicting directives, memoranda, or field guidance regarding the enforcement of immigration laws and priorities for removal are immediately rescinded. The Memorandum specifically mentions that this includes the Nov. 20, 2014 memoranda titled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” and “Secure Communities.” The Memorandum does not, however, rescind the June 15, 2012 memorandum titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children“ and the Nov. 20, 2014 Memorandum titled “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.”1 Both the June 15, 2012, and November 20, 2014, memoranda are part of the Deferred Action for Childhood Arrivals (or DACA) immigration policy implemented by the Obama administration.
2. DHS Enforcement Priorities
The Memorandum stipulates that DHS will no longer exempt classes or categories of removable aliens from potential enforcement. In order to carry out such enforcement, Immigration and Customs Enforcement (ICE) will hire an additional 10,000 officers and agents. These officers and agents will, as ordered by the Memorandum, prioritize removal of this aliens described in Sections 212(a)(2) [criminal and related inadmissibility grounds], (a)(3) [security and related inadmissibility grounds] and (a)(6)(C) [fraud or misrepresentation inadmissibility grounds], 235(b) [expedited removal of inadmissible “arriving aliens” and other noncitizens apprehended in the interior] and (c) [expedited removal based on security and related grounds], and 237(a)(2) [criminal grounds of removal] and (4) [security and related grounds of removal] of the Immigration and Nationality Act (INA).
In addition, the Memorandum orders DHS personnel to prioritize 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 which constitute a chargeable criminal offense
- Have engaged in fraud or willful misrepresentation 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 departed the U.S.
- Otherwise pose a risk to public safety or national security
3. Strengthening of Programs to Facilitate the Execution of the Immigration Laws
In order to facilities the DHS’ implementation of the Executive Order and the current immigration laws, the Memorandum insists on the use of all statutory authorities. This includes the termination of the Priority Enforcement Program, and the restoration of Secure Communities. Moreover, the DHS will eliminate Forms I-247D, I-247N and I-247X, and replace them with a new form to more effectively communicate with law enforcement agencies.2 The Memorandum directs ICE to expand the use of the Criminal Alien Program, as well as initiate removal against aliens incarcerated in federal, state and local correctional facilities under the Institutional Hearing and Removal Program,3 and under the administrative removal processes. In addition, the Director of ICE and the Commissioner of U.S. Customs and Border Protection (CBP) are directed to expand the so-called 287(g) Program4 to include all qualified law enforcement agencies that request to participate and meet all program requirements.
4. Exercise of Prosecutorial Discretion
The Memorandum directs DHS personnel to initiate enforcement actions against removable aliens, including the arrest or apprehension of an alien whom an immigration officer has probable cause to believe is in violation of immigration laws. Further, DHS personnel are to initiate removal proceedings against any alien who is subject to removal under any provision of INA, and refer appropriate cases for criminal prosecution. The exercise of prosecutorial discretion in regard to any alien who is subject to arrest, criminal prosecution or removal will be made on a case-by-case basis. Prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws.
5. Establishment of the Victims of Immigration Crime Engagement Office
The Memorandum announces the creation of the VOICE Office to establish a liaison between ICE and “know victims of crimes committed by removable aliens.” The Memorandum states that the VOICE Office is to facilitate engagement with the victims and their families, provide information in regard to the offender (including immigration status and custody status) and questions and concerns regarding immigration enforcement efforts are addressed. To facilitate the creation of the VOICE Office, the Memorandum directs the Director of ICE to reallocate any and all resources that are “currently used to advocate on behalf of illegal aliens to the VOICE Office.”
6. The Hiring of Additional ICE Personnel
The Memorandum directs the Director of ICE to “take all appropriate action” to expeditiously hire 10,000 agents and officers, and other support and legal personnel. The Memorandum states the purpose of this is to enforce the immigration laws effectively in the interior of the United States in accordance Executive Order.
7. Programs to Collect Authorized Civil Fines and Penalties
The Memorandum directs the director of ICE, the commissioner of CBP and the Director of USCIS to issue guidance and promulgate regulations to ensure the assessment and collection of all legally authorized fines and penalties from aliens and from those who facilitate their unlawful presence.
8. Aligning DHS’ Privacy Policies with the Law
9. Collecting and Reporting Data on Alien Apprehensions and Releases
The Memorandum directs the Director of ICE to develop a standardized method of reporting statistical data regarding aliens apprehended by ICE and provide monthly reports of such data to the public. Country of citizenship, convicted criminals and the nature of their offense, gang members, prior immigration violators, custody status of aliens, and if released, the reason for release and location of their release, aliens ordered removed and aliens physically removed or returned. The Director of ICE is also directed to develop and provide a weekly report to the public, utilizing a medium that can be readily accessed without charge, of “non-Federal” jurisdictions that release aliens from their custody, notwithstanding an ICE detainer. The report is required to include the name of the jurisdiction, the citizenship and immigration status of the alien, the arrest, charge or conviction, the date of the ICE detainer, the date of release, an explanation as to why the detainer was not honored and all arrest, charges or conviction occurring after release.
10. No Private Right of Action
The Memorandum stipulates that it can be modified, rescinded or supersede at any time without notice. The Memorandum does not create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil or criminal matter.
1 The Memorandum states that the latter memorandum will be addressed in future guidance. What this means is unknown at this time.
2 What these new forms will contain is unknown at this time.
3 A program established to identify and remove criminal aliens located in federal, state and local correctional facilities.
4 This program stems from Section 287(g) of INA, which allows ICE to provide state and local law enforcement with training and authorization to identify, process and detain aliens who are in violation of immigration laws. In other words, the program essentially deputizes state and local law enforcement to act in the place of the DHS.