On Tuesday, February 21, 2017 the DHS posted two memoranda on its website that purport to implement two Executive Orders by President Trump regarding enforcement of the immigration laws. These were originally released as drafts but are now final. This page contains the new memos, the executive orders they implement, as well as a series of fact sheets and other documents.
The memos are so confusing that the DHS almost immediately posted two Q&A websites about the two memos which seek to explain portions that don’t make sense. Those are here:
Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States
Q&A: DHS Implementation of the Executive Order on Border Security and Immigration Enforcement
Much of what is found in these memos repeats inaccurate factual statements and policy summaries found in the Executive Orders. They repeatedly claim there has been a recent border surge that is threatening to overwhelm our current officers. The data show the opposite – that attempted entries are actually way down. Much of what is written focuses on increasing public awareness of how dangerous immigrants are and how much crime they’re committing (which is statistically false). And other sections trumpet “changes” that basically describe what’s already being done. However, there are several important legal changes announced in these memos. Below is my summary:
Memo 1 – “Enforcement of the Immigration Laws to Serve the National Interest”
- Most Previous Guidance is Rescinded – Sort Of
The first memo says all previous “conflicting” guidance memos are rescinded, except for the following two memos:
- The June 15, 2012, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” and
- The November 20, 2014 memorandum entitled “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.”
So, what does this mean? There are literally hundreds of implementing memos and directives issued by the USCIS, DHS, ICE, and former INS that describe how the agencies will apply the law.
It’s not clear which memos are intended to be rescinded. All of them? The DHS has already posted a “Q&A” about these memos which mention at least one memorandum that isn’t rescinded – the memo saying ICE won’t target sensitive places like churches for its enforcement efforts. But it’s hard to know what else is rescinded or not rescinded.
Will it change over time? Apparently only those memos and directives that are “conflicting” with this memorandum are rescinded. But who is to say what is “conflicting”? It’s not clear. One would expect the agency to say explicitly what the law is, but for now we don’t have an answer.
- New Enforcement Priorities
The memo says that ICE will hire 10,000 new officers and agents “expeditiously, subject to available resources.” It’s not clear where they’ll get the budget to do that, but it looks nice on paper.
This section also says ICE and CBP agents will use the following priorities (which don’t seem to be in any certain order of importance) in deciding whether to detain or prosecute immigrants who are removable or inadmissible
“Department personnel should prioritize removable aliens who:
(1) have been convicted of any criminal offense;
(2) have been charged with any criminal offense that has not been resolved;
(3) have committed acts which constitute a chargeable criminal offense;
(4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
(5) have abused any program related to receipt of public benefits;
(6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
(7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.”
A few problems here. Most notably, an ICE agent, who is not an attorney, will be tasked with deciding whether an immigrant has “committed acts which constitute a chargeable criminal offense.” That is – the person doesn’t have to have been charged criminally or found guilty. The ICE agent just has to believe the person has committed those acts and that those acts are “chargeable” (meaning a prosecutor would decide to pursue them) criminally.
This “priority” in essence gives ICE agents carte blanche to arrest anyone they want as long as they can come up with a “criminal offense” they believe the person has committed.
- “Expand” the 287(g) program “to include all qualified law enforcement agencies that request to participate and meet all program requirements.”
It’s not clear what this means. INA § 287(g) allows ICE to enter into agreements with local law enforcement to allow them to do a limited set of tasks normally reserved for ICE officers. But the statute is very clear that the federal government can’t force local authorities to participate. See INA § 287(g)(9).
The 287(g) program exists and it’s not clear what Trump plans to do to change it, other than ask more local agencies to participate (which they can decline). There are currently 38 law enforcement agencies in 16 states that participate in the program.
- Prosecutorial discretion will be exercised on a case-by-case basis
First, it already is. Second, the memo contains no guidance on how these decisions will be made. So, again, it sounds nice in the memo, but this isn’t a change.
- Establish the Victims of Immigration Crime Engagement (“VOICE”) Office
President Trump thinks Americans aren’t informed enough about how dangerous immigrants are, so he’s establishing a propaganda office within ICE. Its stated purpose is so that the victims of crimes by immigrants will be provided information about the offender, including “the offender’s immigration status and custody status.”
Notably, this directive requires the Director of ICE to “reallocate any and all resources that are currently used to advocate on behalf of illegal aliens (except as necessary to comply with a judicial order) to the new VOICE Office” although it is unclear what funds that would be. We aren’t aware of any ICE funds that are used to “advocate on behalf of illegal aliens.” I wouldn’t be shocked if this office never gets funded because there aren’t any such funds to re-allocate.
On the other hand, there are funds the DHS allocates to non-profits to assist victims of crimes who also happen to be immigrants. If that’s the funds they’re planning to target, that would be a shocking development. We’ll see.
- Hiring 10,000 additional ICE agents and officers.
Requires a budget allocation from Congress.
- Establish a program to collect civil fines and penalties.
This is one of the provisions that could be much larger than it seems in the memo. Technically, ICE already collects fines. But the statute allows the Attorney General to fine people for a number of things that aren’t really enforced currently. That is in large part because regulations have never been issued to clarify how and in what manner the fines will be collected.
Presumably they would still need a federal regulation to implement the statute if that’s what they’re planning to do. It’s not clear what this will entail.
- Stop applying the Privacy Act to people who are not citizens or permanent residents.
The George W. Bush Administration broadened the application of the Privacy Act of 1974 to cover “non-U.S. persons” including people with temporary visas. That memo is currently located here.
This memo purports to rescind it so that now the Privacy Act will not apply to anyone who is not a U.S. citizen or a permanent resident. But there is a large privacy infrastructure in place at the DHS already that goes beyond the Privacy Act. If they actually do this, it will gut all privacy protections in place for anyone who is not a U.S. citizen or permanent resident.
- Publishing a weekly “Immigrant Crime” report
More propaganda. Again, the president thinks people need to be better informed about how dangerous immigrants are and need to know which Cities or Counties are refusing to comply with non-mandatory ICE detainers. So the agency is now planning to devote resources to a weekly report on both issues. Apparently this doesn’t require that a person be convicted of the crime, and it’s not clear how they’ll determine which defendants are actually immigrants.
Imagine the possibilities for mis-reporting. Everyone in the United States should be concerned about winding up on the Immigrant Crime report.
Memo 2 – “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies”
- Stop Releasing People Who Are Arrested Entering the United States
This section doesn’t actually describe a current change but rather what the agency wants to do in the future after it makes other changes that aren’t necessarily in the works yet. Basically, CBP is directed to only release individuals who are detained “after illegally entering or attempting to illegally enter the United States” if they are
- being deported
- being granted a visa or other relief or they’re already a US Citizen or lawful resident, refugee, asylee, or TPS holder.
- When the person withdraws her application for admission and departs; or
- When they’re required to dos by statute or a judicial or administrative order
- When the person is being paroled into the United States; or
- When they are found to have a “credible fear” of persecution
BUT, this guidance won’t actually go into effect until ICE (a) establishes a joint plan with the DOJ “to surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants;” and, (b) they build “appropriate processing and detention facilities.
Also, it’s important to note that this section does acknowledge that this guidance is inconsistent with current binding federal regulations and directs the agency to revise its regulations (which requires the Attorney General to do).
So, when will all of that happen? Anyone’s guess.
- Hire 5,000 More CBP Officers
Requires a budget allocation from Congress.
- Identify and quantify “all sources of direct and indirect Federal aid or Assistance to the Government of Mexico”
I got nothing on this one. One would hope we already know what Federal Aid or Assistance we’re giving the government of Mexico. Why Immigration and Customs Enforcement needs a report on what aid we currently give Mexico is beyond me.
One guess is that they’re considering using this report as the foundation for the idea that “Mexico” will pay for the wall by eliminating aid programs to Mexico that are roughly equivalent to the cost of the wall. But that’s just a guess. The memo doesn’t say so.
- Expansion of the 287(g) Program which deputizes local police to undertake Immigration Officers’ duties.
As outlined above regarding the first memo, the 287(g) program is already in place. The agency has the power to expand it. However, these agreements with local law enforcement put local cities and municipalities at serious risk of civil suits when they inevitably mess something up.
After a few local communities are sued by U.S. citizens who get arrested solely for being the wrong color under a 287(g) agreement, I imagine cities and localities will not be any more interested in 287(g) than they are now (which isn’t much).
- Commission a comprehensive study of border security
We already have pretty good statistics on criminal activity along the border, apprehensions, deportations, etc. So we are already doing this, but the memo makes it clear we’re going to do more of it.
- Build a wall – sort of.
This the “wall” we were promised, which Mexico was going to pay for? Not exactly. The memo says the United States will immediately begin
“planning, design, construction and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads, along the land border with Mexico in accordance with existing law, in the most appropriate locations and utilizing appropriate materials and technology to most effectively achieve operational control of the border.”
For one, the wall doesn’t actually cover the border – just the “most appropriate locations” – and there is already a giant fence covering the “most appropriate locations.”
Also, the directive doesn’t explain how the federal government will acquire the land to build the wall along the border, given that it’s privately owned currently.
Finally, the memo says CBP will ask Congress to pay for it. No mention of Mexico paying for it.
- Expanding Expedited Removal for “aliens apprehended at the border.”
This is the part most people have been afraid of, but for now it’s not clear when anything with actually change.
First, the memo says we’re going to keep using expedited removal like we already do: to deport people who are caught at the border unless (a) they are unaccompanied children (b) they intend to apply for asylum, or (c) they already have immigration status.
Current policy, which has the force of a binding federal regulation, is that this can only be used against a person caught within 100 miles of the U.S. border.
To “expand” expedited removal, the memo says they would like to use this power against anyone caught anywhere in the United States unless they could prove “to the satisfaction of an immigration officer that they have been continuously physically present in the United States” for two years.
But, the memo acknowledges this is inconsistent with current law and says “the Department will publish in the Federal Register a new notice explaining the expansion of expedited removal in some currently-unknown manner.
What does that mean? It’s not clear.
- Deport individuals arriving from a contiguous country to that country while waiting for their removal hearings pursuant to INA 235(b)(2)(C).
Although this is written into the statute, it appears it would require an implementing regulation – not a policy memo – to implement it. It’s not entirely clear that the Secretary of the DHS can do this without an additional regulation.
Also, there are serious practical problems unexplained in the memo. How will a person who has been deported to Mexico attend their immigration court hearings in the United States? Or in rural Canada?
- Asylum Referrals and Credible Fear Determinations
This section doesn’t seem to be much of a change. It says the agency will continue to follow the law regarding credible fear interviews. It says they will “increase the operational capacity of the Fraud Detection and National Security (FDNS) Directorate.
Will that result in less people being found to have a credible fear? The memo doesn’t say so.
- Allocate resources and personnel to the Southern Border
As with much else in this memo, it will require significant expenditures from Congress. This section says they plan to expand detention capabilities and capacities at or near the border with Mexico. And they plan to increase the number of asylum officers and FDNS officers assigned to detention facilities located at or near the border.
- Proper Use of Parole Authority
It’s not clear that this is a change. It says agencies will issue written policy guidance and training to employees about how to exercise parole authority.
People found to have a credible fear will still be paroled in as they currently are for removal proceedings.
- Changes to the Treatment of Unaccompanied Minors
Again, this memo alone doesn’t describe a significant change. It says agencies will issue written guidance and training for all employees and contractors regarding the proper processing of unaccompanied alien children. Presumably their focus will be on decreasing the number of children who are designated as Unaccompanied Children and revoking that status if it appears the child is living with one of their parents.
- Criminal prosecution for anyone who – directly or indirectly – facilitates the smuggling of children into the United States.
It’s already a crime to smuggle someone into the United States. DHS doesn’t have authority to tell prosecutors what crimes to prosecute. But the Attorney General, Jefferson Beauregard Sessions III is the one who came up with this idea, so I suspect there will be a push in U.S. Attorneys’ offices to prosecute these crimes.
What stands out to me here is the phrase “directly or indirectly.” As with much else here, it’s unclear what that means. Do you “indirectly” facilitate smuggling if you lend your brother money and then your brother chooses to spend it on paying a smuggler? How does one indirectly facilitate the smuggling of children? We’ll see.
- Prosecute crimes that happen along the border
- Public Reporting of Border Apprehensions data
Today’s two DHS memos do not rescind the November 20, 2014 memorandum entitled “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.”
What are the implications for parents of US citizen children?