March 7th, 2018
New DHS Memos Outline Aggressive Approach to Immigration and Border Enforcement
Department of Homeland Security Secretary John Kelly signed two new agency memos on Monday, offering detailed instructions as to how the Department will carry out President Trump’s strict executive orders on immigration. Below is a brief explanation of some of the memos’ key provisions.
Expedited Removal and Immigrant Detention
Under the Trump Administration guidance, expedited removal will be utilized to the full extent that current regulations allow. Expedited removal allows Customs and Border Patrol to remove individuals from the country without any hearing before an immigration judge. Despite this lack of process, such a removal may impose a five-year bar on reentering the country, or a lifetime bar in some circumstances. The previous Obama Administration limited these expedited removal proceedings to individuals apprehended at or near the border, or within 14 days of arriving in the country. According to the new guidance memos, however, expedited removal will be used for anyone in the country who cannot prove that they have been continuously present for at least two years. The DHS memos also emphasize the need to detain all individuals who have been deemed inadmissible, except in limited circumstances, indicating an increased use of detention regardless of whether or not the individual poses a flight risk or danger to the community.
Increase in Border Patrol Agents, Detention Facilities, and Immigration Judges
The memos call for a “surge” in deploying immigration judges and asylum officers to adjudicate cases of recent arrivals along the US/Mexico border, and increased capacity in detention centers both along the border and throughout the interior of the country. The memos also direct DHS to immediately begin the process of hiring 5,000 new Border Patrol agents, in addition to the all-time high of 20,000 agents currently employed.
Granting Immigration Authority to State Law Enforcement
The memos also direct DHS to expand the controversial 287(g) Program, which allows DHS to enter into cooperative agreements with state and local law enforcement agencies. Under the program, local law enforcement officer are authorized to enforce immigration laws, regardless of their level of knowledge or familiarity with federal immigration laws and regulations.
Changes to “Unaccompanied Alien Child” Policy
Unaccompanied minors who arrive at the US border are currently offered special protections and processes under the William Wilberforce Trafficking Victims Reauthorization Act of 2008, including the ability to file an asylum application directly with USCIS and exemption from expedited removal. In a change from the previous administration, the DHS memo redefines UAC status to exclude children who subsequently reunite with a parent in the United States, potentially subjecting these children to detention and expedited removal proceedings.
The memos leave some uncertainty regarding recipients of DACA, or Deferred Action for Childhood Arrivals, a program instituted under the Obama Administration to protect undocumented individuals who were brought to the United States before the age of sixteen, either completed or were enrolled in school, and did not have any serious criminal convictions. Although the Trump Administration has stated that they will not initiate removal proceedings against DACA recipients unless they are convicted of a crime, the DHS memo leaves this exercise of prosecutorial discretion up to individual immigration officers. The memo states that “prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of immigration laws.”
Victims of Immigration Crime Engagement Office
In addition to enforcement changes, the DHS memo also calls for establishing the Victims of Immigration Crime Engagement (VOICE) Office, in order to engage with victims of crimes committed by unlawful immigrants to document and report such crimes. The memo directs ICE “to immediately reallocate any and all resources that are currently used to advocate on behalf of illegal aliens” to fund the new VOICE office. Although the memo states that this office is necessary to address the problem of “criminal aliens routinely victimiz[ing] Americans and other legal residents,” studies have consistently shown that immigrants are far less likely to commit crimes than individuals born in the United States.