DHS Memo “Enforcement of the Immigration Laws to Serve the National Interest”

Secretary John Kelly released two memos regarding the implementation of the Trump Executive Order from January 2017. This piece focuses on the memorandum which has to do with the First Immigration Executive Order issued January 25th, 2017. You can read my summary of that order here.

What the Memo Does

This memo implements the EO (“Executive Order”) referring to immigrants currently in the United States illegally.

  1. The memo officially rescinds all the Obama immigration policies (Except DACA and 601A waivers).
  2. Secretary Kelly authorizes the hiring of 10,000 new ICE employees.
  3. This memo also creates 7 categories of people who should be found and deported:

A) Unauthorized immigrants with criminal convictions (note, a criminal conviction normally means convicted of a crime where a jail sentence could have been imposed, so a speeding ticket with no chance of jail time does not constitute a crime.)

B) Unauthorized immigrants who have been charged with a crime (note, the Obama administration waited until there was a CONVICTION since there is a chance the charges are bogus. That waiting period is now out. I have a client who was deported even though he honestly believed he could beat his underlying criminal charges but was deported before he had the chance.)

C) Unauthorized immigrants who have committed acts which constitute a chargeable criminal offense (note 1, this means a local law officer could pick up an immigrant, make a police report which alleges a crime was committed, and turn that immigrant over to ICE without actually charging the individual. Note 2, this might also happen if a neighbor of an immigrant calls ICE, alleges that the immigrant broke the law, and now ICE can detain the person without actual police reports alleging a crime.)

D) Unauthorized immigrants who have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency (example, an immigrant gets a driver’s license using a made up name. There is no victim since the name is made up, but fraud happened before an agency.)

E) Unauthorized immigrants who have abused any program relating to receipt of public benefits

F) Unauthorized immigrants who are subject to a final deportation order (prior deportation, ordered deported but never left.)

G) If an Immigration Officer (discretion used by the individual officer) sees an immigrant who poses a risk to public safety and/or national security

4. The memo orders the people to read the law to remove aliens expeditiously from the United States. (Section B paragraph 2)

5. Resurrects the Secure Communities Program, which includes treating local law enforcement officers as “immigration officers.” This matters since ICE officers have certain power a local law enforcement officer does not. It also creates confusion since local law enforcement officials don’t know or have a way to know who is legal and who isn’t. (Anecdote, my firm had a client in the pre-Obama era who was a legal permanent resident, he got pulled over and didn’t have his license on him. The local police officer racially profiled our client, arrested him as an “illegal” and took him to an ICE office 3 hours away from where he was pulled over. ICE apologized and had to drive him back to his car. SERIOUSLY).

6. Asks ICE officers to use the Administrative Removal procedure in all eligible cases. (That is, deport without the immigrant seeing a judge)

7. The memo authorizes Prosecutors to exercise Discretion in extreme and narrow cases which allow a person who has no authorization to be issued a work permit and be allowed to stay indefinitely. (I don’t know what this means exactly. Under the Obama Administration entire categories of people were not to be deported under prosecutorial discretion and issued work permits. I don’t know who that helps now)

8. Creates a new office dedicated to giving voice to victims of unauthorized immigrants. The office is called VOICE.

9. Creates guidelines to get fines collected from the unauthorized immigrants

10. Creates a new Data collection and distribution program to inform the public of deports and crimes committed by unauthorized immigrants.

11. This did not affect DACA (Dreamers). It does not create a new program but leaves the DACA program as is.

What this means practically

Everyone in the Hispanic community is worried. The new expansion of types of people eligible for deportation places millions of Hispanics into jeopardy. The problem has to do with being undocumented and working. It is nearly impossible to not commit a crime if you enter illegally and wish to work, drive, and live in the United States. Driving without a license in Nebraska is a crime that has a jail sentence. Working with a made up name is a crime. Getting a driver’s license with a fake name is illegal. All of those things are now priorities for deportation. For those communities that choose to participate in the Secure Communities Program, every undocumented immigrant is in danger of removal/deportation.