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DHS Memoranda Implement Executive Orders to Increase Detention and Removal (Deportation)

22 Feb

President Trump signed two Executive Orders on January 25, 2017, addressing both border security and interior enforcement.  These Executive Orders significantly expand the federal government’s priorities on who might be targets for removal (deportation) from the United States and authorize local and state law enforcement officers to act as immigration enforcement officers.

On February 20, 2017, the Department of Homeland Security (DHS) issued two memoranda to begin implementation of the Executive Orders.

DHS Memo Implementing Executive Order on “Border Security and Immigration Enforcement Improvements”

The Executive Order on “Border Security and Immigration Enforcement Improvements” was issued with the purpose to “deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United Sates, and to repatriate illegal aliens swiftly, consistently and humanely.”  The Order also stated: “Aliens who illegally enter the United States without inspection or admission present a significant threat to national security and safety.”  The Order then called for:

  1. Building of a border wall;
  2. Arrest and detention of aliens for unlawful entry while waiting to be removed from the United States;
  3. Adding 5,000 additional border agents;
  4. Partnerships with state and local law enforcement under the 287(g) Program; and
  5. Monthly reporting on apprehensions at or near the border.

The DHS memorandum on “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies”, dated February 20, 2017, explains that DHS will return undocumented aliens to the contiguous country from which they entered the United States rather than their home country.  DHS will also utilize the 287(g) Program to authorize local and state law enforcement to “investigate, identify, apprehend, arrest, detain, transport and conduct searches of an alien” to enforce immigration law.  It also states that agencies are to identify and quantify the direct and indirect sources of Federal aid or assistance to the Government of Mexico.

Expedited Removal

To date, expedited removal, which means removal of undocumented aliens without a court hearing, has been applied to only those undocumented aliens caught within 100 air miles of the border within 14 days after entering the United States.  The DHS memo states, however, that a rule in the Federal Register will be issued to expand expedited removal to aliens who have been in the United States for less than two years if an immigration officer determines the alien is not admissible to the United States.  Unaccompanied minors, those who intend to apply for asylum or have a fear of persecution or torture in their home country, or who claim to have lawful immigration status, would not be subjected to expedited removal.

DHS Memo Implementing Executive Order on “Enhancing Public Safety in the Interior of the United States”

The Executive Order on immigration enforcement in the interior of the United States, signed January 25, 2017, also empowers state and local enforcement agencies to act as immigration officers and to hand over suspected immigration violators.  The Order establishes removal priorities, which is confirmed by the corresponding DHS memo issued February 20, 2017, on “Enforcement of Immigration Laws to Serve the National Interest”.  Priority is no longer given just to removal of aliens who are violent, convicted criminals, but also to those removable aliens who are convicted of any crime, merely charged with a crime, or are suspected by an immigration officer of posing a risk to the public safety or national security:

The Executive Order called for:

  1. Civil fines and penalties from those unlawfully present and those who “facilitate their presence”;
  2. 10,000 new Immigration & Customs Enforcement (ICE) officers;
  3. Punishing of so-called “sanctuary jurisdictions” by withholding federal funds,
  4. Removal of Privacy Act protections from those who are not U.S. citizens or lawful permanent residents;
  5. Quarterly reporting on incarceration statistics by immigration status.

These DHS memoranda do not affect the Deferred Action for Childhood Arrival (DACA) program put into place by former President Obama.  The Executive Orders and subsequent DHS implementation memoranda do clarify that any alien, rather than just convicted criminal aliens, who has committed an immigration violation or who might have committed a crime, is at risk of being removed from the United States.  Those who have been in the United States for less than two years can be expeditiously removed without a hearing.  Those entitled to a hearing can be detained regardless of the offense.   To accommodate the increased number of detainees, DHS has planned to build more detention facilities.  With law enforcement now empowered to act as immigration officers, everyone, including United States citizens, should be prepared to demonstrate their lawful status in the United States.

For more information on the Executive Orders and implementation, please refer to the DHS website at https://www.dhs.gov/executive-orders-protecting-homeland. If you would like to discuss an individual case, please contact your Foster attorney.