On February 20, 2017, Department of Homeland Security released the memorandum, Enforcement of Immigration Laws to Serve the National Interest, effective immediately. This memorandum has laid effect to President Trump’s Executive order – Enhancing Public Safety in the Interior of the United States. We discuss the highlights of the memorandum below.
The Memorandum states that “effective immediately,” DHS shall faithfully execute U.S. immigration laws against “all removable aliens” and will no longer “exempt classes or categories of removable aliens from potential enforcement.” This will include individuals inadmissible on criminal, fraud, misrepresentation and related grounds. It will also include aliens who have been convicted of any criminal offense, charged with criminal offense that has not been resolved, commit acts that constitute chargeable criminal offense, abused any program to receive benefits, are subject to final order of removal but have not departed, or a risk to public safety or national security. Hence, the memorandum envelops an exceptionally broad phrase of criminal activities which includes minor infractions such as jay walking or driving without a license to major threat such as a threat to national security or public safety. It also gives broad discretion to immigration officers and allows them to arrest, apprehend, and initiate enforcement actions against any alien whom an immigration officer has a probable cause to believe has violated the immigration laws.
Expedited Removal is expanded to cover all undocumented who have been here for less than 2 years. Earlier expedited removal applied to undocumented people who had been in the country less than 14 days and were detained within 100 miles of the border. Expedited removal allows the enforcement officers to deport without a hearing in front of a judge. It does not allow the deportation process to go through the Immigration Courts. The undocumented immigrant may not be allowed to consult an attorney. The Memorandum directs DHS agencies to make full use of all statutory authorities for removing aliens “expeditiously.” The Memorandum directs that other “administrative removal processes” shall be used and that could include “stipulated removal,” a procedure which typically effectuates removal rapidly while the individual is detained and unable to obtain legal counsel.
The Expansion of 287(g) includes allowing CBP to enter into such agreements and contemplates resuming “task force” agreements authorizing local police to arrest potentially removable noncitizens in the field. The Obama Administration discontinued the use of “task force” agreements due to significant concerns that it would encourage the use of racial profiling by local law enforcement.
Further, the Secure Communities Program will be functional to execute the guidelines of this memorandum. ICE will expand Criminal Alien Program and coordinate with EOIR to initiate special removal proceedings of individuals while in custody and convicted of certain offenses. In all eligible cases, removal without hearing through the administrative process will be executed. In addition, ICE and CBP are directed to expand and delegate federal immigration law enforcement functions to other agencies such as the police and enforcement agencies. ICE is instructed to expeditiously hire 10,000 ICE agents and officers.
The memorandum indicates that DACA is intact with no immediate change in the policies. For now, it has protected about 750,000 immigrants who came to US illegally as children and are now working with legal work permits.
The Memorandum rescinds the pre-existing guidance on prosecutorial discretion and directs that discretion may not be exercised for classes or categories of noncitizens, except as otherwise provided in the Memorandum (referring to DACA). Instead, it directs DHS personnel to arrest, apprehend, and initiate enforcement actions against “any alien whom an immigration officer has probable cause to believe” has violated the immigration laws. This language makes clear that everyone is a priority and amounts to a widespread deportation plan. This is unlike the plan publicized to just deport the criminals.
The outcome of this memorandum will take us back to the year 1954 when President Dwight Eisenhower removed about a million people and assumed he has resolved immigration issues. The present memorandum is speculated to affect approximately 11 million undocumented immigrants living in the US. It is not hard to assume that such mass deportation will tear the families apart and spread a fear in the immigrant community. We are hoping in this immigration whirlpool, the core American values are intact and faith on the judicial system upheld!