Leaked DHS Memo Implementing the Executive Order on Border Enforcement

On February 17, a memorandum signed by DHS Secretary John Kelly was leaked and seeks to implement the Executive Order entitled “Border Security and Immigration Enforcement Improvements”. Below are brief highlights of this memorandum which could be changed (with comments in italics) — this summary should not be a substitute for legal advice or suggest that the underlying Executive Order is lawful or feasible.

This memo supersedes all conflicting policies regarding the detention, apprehension, detention and removal of noncitizens “who have no lawful basis to enter or remain in the United States”.

Policies Regarding the Apprehension and Detention of Aliens Described in Section 235 of the Immigration and Nationality Act.

  • ICE should only release those detained under 235(b) of the INA on a case by case basis: when removing a person from the US; when the noncitizen is granted relief or protection from removal or the person is a lawful permanent resident (green card holder), refugee, asylee, holds TPS or another valid immigration status; when DHS consents to a noncitizen’s withdrawal of an application of admission; when required to do so by law; when parole is authorized by DHS (some relaxation on the process for exigent circumstances); when a noncitizen establishes a “credible fear” of persecution.

Hiring More CBP Agents/Officers

  • CBP shall immediately begin the process of hiring 5000 additional Border Patrol Agents as well as 500 Air & Marine Agents/Officers.

Expansion of the 287(g) Program

  • Directs ICE and CBP to “engage immediately with all willing and qualified law enforcement jurisdictions” who are eligible for the purpose of entering into 287(g) agreements.

*287(g) is a section of the INA that allows for local law enforcement to enter into agreements with the federal government in order to enforce immigration law. These agreements have been controversial insofar as they have deputized local law enforcement as immigration agents and as a consequence affected public safety and crime fighting at the local level.

Border Wall Construction and Funding

  • Directs the relevant parties of DHS and others to “‘immediately begin planning, design, construction and maintenance of a wall”.

Expanding Expedited Removal

  • “To ensure the prompt removal of aliens apprehended at or near the border,” DHS will publish in the Federal Register “a new Notice Designating Aliens Subject to Expedited Removal”.

*The goal here appears to be an expansion of a program that enables DHS to apprehend, detain and remove certain noncitizens who arrive at a border or are found in the United States within two years of their inadmissibility. The expedited removal program is by definition a summary removal program and one that lacks several of the procedural safeguards (however limited) available when a person can be heard by an immigration judge/court room.

Proper Use of Parole Authority Pursuant to Section 212(d)(5) of the INA

  • The existing parole policy with regard to those have established a credible fear of persecution shall remain in effect. The ICE directive should be implemented “in a manner that is consistent with its plain language.”

*Possibly, the pre-existing policy considering parole automatically for asylum seekers who have established a credible fear remains in effect but that greater scrutiny may be placed on whether or not each person deserves to be released on parole.

Accountability Measures to Protect Alien Children from Exploitation and Prevent Abuses of Our Immigration Laws

  • ICE and CBP shall enforce the immigration laws against those who “directly or indirectly” “facilitate the smuggling or trafficking of alien children into the United States.”

Prioritizing Criminal Prosecutions for Immigration Offenses Committed at the Border

  • Relevant agencies of DHS/taskforces should plan and implement a system aimed at “disrupting transnational criminal organizations” — and should also target other offenses such as drug trafficking, illegal entry and reentry, visa fraud, among others.

*Criminal prosecutions of immigration-related offenses such as illegal entry and reentry have been controversial — for example, see: https://www.hrw.org/report/2013/05/22/turning-migrants-criminals/harmful-impact-us-border-prosecutions

and also: https://pennstatelaw.psu.edu/events/rethinking-reentry-prosecution-defense-and-human-rights-perspectives

Public Reporting of Border Apprehension Data

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