Everything You Need to Know About New DHS Immigration Memos

Earlier today the Department of Homeland Security (DHS) released two new memos outlining the Trump Administration’s plan to aggressively enforce the current immigration laws of the country, which will likely result in a massive expansion of the number of illegal immigrants detained and deported.

These memos clearly bolster and aggressively reinforce the Administration’s ability, currently allowed under the law, to confront the issue of illegal immigration, as the country awaits rulings by numerous federal courts on the President’s last three Executive Orders released in January on this issue.  Separately, the White House is still preparing to reissue an Executive Order in the coming days that would replace the one on travel and refugees currently being challenged in the courts.

Both guidance memos released by DHS were signed by Homeland Security Secretary John Kelly.

One memo was focused on the issue of implementing current immigration policy mandated by law and the other on the matter of enforcement.

The memos clearly reaffirm the Administration’s commitment to the current immigration laws on the books by:

• Strengthening current programs designed to facilitate the efficient and faithful execution of the immigration laws of the United States
• Establishing the Victims of Immigration Crime Engagement (VOICE) Office
• Ensuring that the Department’s privacy policies are all aligned with the current law
• Allocating a major increase in resources to Immigration and Customs Enforcement (ICE), Customs and Border Protection required to immediately begin building a wall along the southern border
• Hiring of 10,000 new ICE and Immigration Officers and 5,000 new border patrol agents
• Ending the former practice of “catch and release”
• Expanding the government’s immigration enforcement operations currently allowed under law by instructing agencies to implement unused parts of existing laws and regulations to achieve the Administration’s goals
• Clarifying the proper standards that should be observed by all government and law enforcement officials charged with the processing of undocumented immigrants in the U.S.
• Expanding the number of individuals who can be deported using the current “expedited removal” procedures.
• This would likely include all individuals in the country illegally and charged with a criminal act, charged with government welfare fraud, or unable to prove that they have been living in the country continuously for two years.
• Commissioning a new study focused on Border Security
• Encouraging new engagement with Mexico on the issue of illegal immigration
• Expanding the role of local law enforcement to serve patrol and immigration functions on border when necessary and where applicable
• Reviewing the current Parole Process
• Reporting publicly new apprehension and deporting data as it becomes available.

The memos stated that they would not affect the current Deferred Action of Child Arrivals (DACA) policy and program originally initiated in 2012 by the Obama Administration.

In the memo outlining implementation, DHS stated the following:

“[This memorandum] implements new policies designed to stem illegal immigration and facilitate the detection, apprehension, detention, and removal of aliens who have no lawful basis to enter or remain in the United States. It constitutes guidance to all Department personnel, and supersedes all existing conflicting policy, directives, memoranda, and other guidance regarding this subject matter- to the extent of the conflict- except as otherwise expressly stated in this memorandum.”

DHS further explained the Administration’s policy in addressing the issues presented by illegal immigration by explaining that:

“The President has determined that the lawful detention of aliens arriving in the United States . . . pending a final determination of whether to order them removed, including determining eligibility for immigration relief, is the most efficient means by which to enforce the immigration laws at our borders. Detention also prevents such aliens from committing crimes while at large in the United States, ensures that aliens will appear for their removal proceedings, and substantially increases the likelihood that aliens lawfully ordered removed will be removed.”

Regarding the construction of a border wall, DHS stated:

• “A wall along the southern border is necessary to deter and prevent the illegal entry of aliens and is a critical component of the President’s overall border security strategy.”
• “Congress has authorized the construction of physical barriers and roads at the border to prevent illegal immigration in several statutory provisions…”
• “Consistent with the President’s Executive Order, the will of Congress and the need to secure the border in the national interest . . . to the maximum extent permitted by law-shall 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.”

The second memo detailing DHS’s focus on enforcement suggested that the new direction outlined in these memos will serve as “guidance for all Department personnel regarding the enforcement of the immigration laws of the United States, and is applicable to the activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). As such, it should inform enforcement and removal activities, detention decisions, administrative litigation, budget requests and execution, and strategic planning.”

The second memo also redefines the Department’s enforcement priorities:

“Congress has defined the Department's role and responsibilities regarding the enforcement of the immigration laws of the United States. Effective immediately, and consistent with Article II, Section 3 of the United States Constitution and Section 3331 of Title 5, United States Code, Department personnel shall faithfully execute the immigration laws of the United States against all removable aliens.”

It further lists specific priorities for removal:

“Additionally, regardless of the basis of removability, 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.