Trump Administration's New DHS Immigration Enforcement Criteria And The Future of Travel/Visa Ban

by Hirschfeld Kraemer LLP

After a short lull in immigration policy action, things are changing again. Last week the Trump Administration informed the 9th Circuit Court of Appeals that it would issue a new Executive Order (EO) on the travel/visa ban this week which will replace the initial EO and moot the 9th Circuit’s national temporary restraining order. The new EO is expected late this week and has not been released in draft form. The Trump Administration has offered some information about the new EO as follows: it will not take effect immediately upon issuance, to allow for preparations and avoid the chaos that ensued when the initial EO took effect immediately; it will apply to the same seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen); it will clarify how it applies to dual citizens of a listed country and another country that isn’t on the list; it will be clear that lawful permanent residents of the US are not affected by the EO; it may allow some refugees from Syria. These points address the most obvious legal and operational deficiencies of the initial EO.

Meanwhile, late last week the Department of Homeland Security (DHS) issued a detailed guidance regarding immigration enforcement for its constituent divisions, US Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), US Citizenship and Immigration Services (USCIS) and US Border Patrol. DHS Secretary Kelly issued two internal DHS memoranda which then were formally adopted on February 20 after approval by the White House Counsel. These memoranda cite legal authority and prior DHS policy and make major changes to immigration enforcement priorities and practices. Here are a few highlights of the new enforcement policy proposed by DHS:

•  DACA and DAPA specifically are not affected by this new guidance, but in a footnote DHS says DAPA will be revisited in future guidance. The final version specifically references DACA and DAPA as the exceptions to this new enforcement policy under which DHS “will no longer exempt classes or categories of removable aliens from potential enforcement” (other than DACA and DAPA).
•  DHS will no longer focus on criminal convictions as a basis for removal, but will also prioritize removing aliens who have been charged with a crime even if the charges haven’t been resolved or have admitted criminal behavior, or who have engaged in fraud or willful misrepresentation to any government agency or abused any public benefit program.

•  DHS officers will take into custody for removal any alien they encounter who is subject to removal, regardless of the basis for removal. They will no longer focus their enforcement resources on removing aliens convicted of serious crimes or who pose a threat to public safety or security. The high profile case involving the recent detention of a DACA beneficiary in Seattle is an example of this policy. The DACA beneficiary was not a target of the enforcement action, but in apprehending an alien with a felony conviction (the DACA beneficiary’s father) DHS encountered the DACA beneficiary and took him into custody too. DHS is taking the position that the individual lost DACA protection because he allegedly admitted to being a member of a gang, but this admission is disputed. Detention of the DACA beneficiary for removal has been challenged in court.

•  DHS will seek immigration detainers for all incarcerated individuals, regardless of the nature of the charge or conviction. Immigration detainers are a request by DHS for the individual to be “released” directly to DHS for removal proceedings when their state or local custody ends. State and local authorities are not required to honor DHS immigration detainers. DHS will collect and publish information regarding state/local jurisdictions that disregard DHS immigration detainers including the nature of the offense charged or convicted. For example today (February 21) DHS issued a press release that ICE apprehended a Salvadoran “gang member” who was released from local custody in New York City despite an immigration detainer. The press release says the individual has a “criminal history” in the US including reckless endangerment, criminal possession of a weapon, and disorderly conduct.

•  DHS will substantially increase the use of “expedited removal”, a process to remove individuals form the US without the opportunity to challenge their detention or grounds of removal. Expedited removal helps keep cases out of US immigration courts, which already have a backlog of over 534,000 cases according to DHS.

•  DHS will change the system for processing unaccompanied minors who enter the US illegally, to discourage family members in the US from encouraging or facilitating children’s illegal entry to the US, and prosecute under human trafficking laws any parents who resort to smugglers to bring their children to the US.

•  DHS will implement a plan to hire 5,000 more Border Patrol agent and 10,000 more ICE Agents for the southern US border, and will work to expand border detention facilities which already are at capacity.

•  DHS will expand use of the Section 287(g) to the greatest extent possible, to deputize local and state law enforcement as immigration officers, at state or local expense, as a “force multiplier.” Section 287(g) participation must be consistent with state or local law and requires a written agreement between the US Attorney General and the participating state or local jurisdiction.

•  DHS will develop a plan to construct and fund a wall on the southern border, identifying and allocating all available DHS funding for this project for the current fiscal year and the following five fiscal years.

Apparently, in a conference call with reporters regarding the final memoranda, DHS officials tried to soothe fears by pointing out that they can’t do all of this at once operationally and they don’t have resources to fund all of this at the present. But it’s clear that the broader detention and removal criteria already have been deployed in the field.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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