On February 20, 2017, Department of Homeland Security (DHS) Secretary John Kelly issued two memoranda, “Enforcement of the Immigration Laws to Serve the National Interest,” and “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies.” These two “Kelly Memos” direct DHS employees, including employees of the U.S. Citizenship and Immigration Service (USCIS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) on the implementation of President Trump’s January 25, 2017 Executive Orders “Enhancing Public Safety in the Interior of the United States,” and “Border Security and Immigration Enforcement Improvements.”
Overall, the Kelly Memos provide for the prioritization of essentially every individual in the United States who does not have either a lawful immigration status or protection under Deferred Action for Childhood Arrivals (DACA).
The Memos also include directives for the expansion of Expedited Removal to allow the rapid removal of individuals from the United States without the right to a hearing in front of a U.S. Immigration Judge; expansion of immigration detention facilities; an increase in the number of ICE and CBP agents; construction of the border wall; the elimination of the Military Parole in Place (PIP) and other immigration parole programs; require more rigorous scrutiny of asylum seekers and curtail certain protections in place for unaccompanied children entering the United States.
Taken together, the Kelly Memos and the Trump Executive Orders have civil liberties and immigration advocates deeply concerned about the protection of due process rights of documented and undocumented immigrants in the United States, the impact on their U.S. citizen family members and the restriction of due process rights to refugees seeking asylum protection in this country.
We continue to remind individuals in the United States to know their legal rights in the United States if they are questioned or detained by DHS officers.
This post addresses a several of the issues addressed in the Kelly Memos. Additional topics will be addressed in forthcoming blog posts.
Priorities for removal – everyone (except for those on DACA)
The Trump Administration continues to publicly state that it will prioritize the removal of criminal aliens. However, the Kelly Memos explicitly rescind prior DHS policy guidance (published under the Obama Administration) that prioritized terrorists and national security threats, criminal aliens, recidivist immigration violators and recent entrants for removal from the United States.
Under the Kelly Memos, people in the United States without lawful status are all equal priorities for removal if they have been: been convicted of any criminal offense; been charged with any criminal offense that has not been resolved; committed acts that constitute a chargeable criminal offense; engaged in fraud or willful misrepresentation in connection with any official matter before a government agency; abused any program related to receipt of public benefits; subject to a final order of removal, but have not departed; or if they otherwise pose a risk to public safety or national security.
These priorities are broad enough to encompass every individual in the United States without documentation. To underscore this point, the Kelly Memo directs DHS to initiate removal proceedings against “any alien subject to removal under any provision of the Immigration and Nationality Act.”
The Kelly Memos do not set forth any objective standards by which an ICE officer is to determine whether an individual has “committed acts that constitute a chargeable criminal offense,” have “abused a program related to public benefits,” or poses a “risk to public safety.” The breadth of the priorities and lack of objective standards to employ these priorities opens the door to potential racial profiling and abuse of due process rights.
Over the coming weeks and months, we will see how DHS implements the directives in these memoranda, and the individuals targeted for removal. In the meantime, it is essential the individuals in the immigrant community know their legal rights in the United States.
People with DACA are NOT a priority for removal
The Deferred Action for Childhood Arrivals (DACA), the program was implemented in 2012 by President Obama to provide a temporary reprieve from removal and employment authorization to individuals brought to the United States as children (the so-called “Dreamers”). As noted above, individuals on DACA are not identified as a priority for removal.
Further, the June 2012 DHS Memorandum that created the DACA program has not been rescinded. DHS Secretary Kelly has indicated that DACA will be addressed at a later date.
Thus, for now, individuals on DACA should not be subject to removal from the United States unless they have been convicted of a criminal offense that would make them ineligible for DACA.
We will provide further updates on the Trump administration’s treatment of individuals with DACA as more information becomes available.
Expansion of expedited removal
As addressed in prior blog posts, the Expedited Removal is a “fast track” removal process that allows an ICE officer (not an Immigration Judge) to determine a person is inadmissible to the United States for either not having proper immigration documentation or possessing fraudulent documentation, and for the ICE officer to remove that individual from the United States without a hearing. Under current policy, Expedited Removal is only used for individuals seeking admission to the United States at the border or for those encountered within 100 miles of the border and who cannot establish they have been in the United States for at least two weeks.
Both Trump’s Executive Order and the Kelly Memos call for a vast expansion of Expedited Removal to apply to individuals encountered anywhere in the United States who cannot establish that they have been in this country continuously for at least two years or lack a credible claim to asylum protection in this country.
The use of Expedited Removal far from our borders for individuals who cannot establish residence for two years is troubling because it allows ICE officers to remove people from the United States in as little as 24 to 48 hours without allowing that individual access to legal counsel or the opportunity to be heard by a U.S. Immigration Judge. Further, it has the potential to rapidly remove individuals who have resided in the United States for many years, including individuals with children and families, simply because they do not have sufficient evidence of their presence in the United States the required two-year period.
The Kelly Memos direct the expansion of Expedited Removal through the publication of a notice in the Federal Register. Thus, the expansion of the Expedited Removal program is not yet in effect. We expect the parameters of the expanded Expedited Removal program to be outlined within the next weeks and in effect within the next few months.
As we have previously advised, individuals who have resided in the United States for more than two years should collect documentation to establish their continuous residence in this country and have this documentation easily available if they are detained by DHS agents.
Please also be sure to review our detailed posts on an individual’s rights in Expedited Removal Proceedings and immigrants’ rights in the United States generally.
Planned expansion of immigration detention
The Kelly Memos call for a significant expansion of immigration detention and the deployment of additional Immigration Judges and Asylum Officers to detention facilities.
Secretary Kelly directs DHS to detain nearly everyone it apprehends including individuals with no criminal conviction until they are 1) removed from the United States; 2) required to be released by statute or because of a binding settlement agreement or judicial order; 3) become a U.S. citizen or hold a lawful immigration status; 3) are found to have a credible fear of persecution by an asylum officer or Immigration Judge and agree to comply with any conditions on their release by ICE or, are paroled into the United States.
However, Secretary Kelly acknowledges that there are not currently sufficient resources – detention facilities, immigration judges and asylum officers – for this expansion of detention to take effect. It is unclear when or how these resources will be sufficiently augmented to allow this expansion of detention to occur.
Therefore, in the meantime, the Secretary directs DHS officials to prioritize individuals for detention based on whether they pose a threat to public safety and/or are a flight risk.
These two factors are the current factors considered by DHS and Immigration Judges in assessing whether an individual in immigration removal proceedings is entitled to release on an immigration bond while removal proceedings are pending.
While a vast expansion of immigration detention is expected, for now, we anticipate an increase in detention of immigrants, but do not foresee mass incarceration of immigrants in removal proceedings in the immediate future.
For more information on the new administration’s orders on immigration, DHS policy memoranda or other U.S. immigration matters, please contact Kolko & Associates, P.C.
