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Summary of DHS Memorandum on Border Enforcement

by Dinh Tran, Partner, Queen City Immigration Law. 704-500-2075

On Friday, February 17, 2017, the Secretary of Homeland Security, John F. Kelly, issued a memorandum implementing President Trump's Executive Order on Border Enforcement. The purpose of this document is to serve as “guidance to all Department personnel, and supersede all existing conflicting policy, directives, memoranda, and other guidance regarding this subject matter — to the extent of the conflict — except as otherwise expressly stated.” Some of the more important directives are as follows:

The Secretary, echoing the campaign promises and executive commands of President Trump, called for expansion in detention of aliens who are in the United States without lawful status. The memorandum instructed DHS enforcement components, Custom and Border Protection ("CBP") and Immigration and Customs Enforcement ("ICE") to detain nearly everyone including those with no criminal convictions until they are removed from the United States, are required to be released by law, are found to have a valid claim for asylum, or are paroled into the United States. Granting a parole has also been made more cumbersome, requiring the Deputy Director of ICE or the Deputy Commissioner of CBP to agree in writing. Additionally, the DHS Secretary urged his subordinates to exercise parole authority on a case-by-case basis as required by federal regulations and to only do so "sparingly."

In order to further secure the southern border, the memorandum on Border Enforcement requests immediate hiring of additional CBP agents/officers, allocating more resources to the border region to increase detentions and expedite adjudication of claims, encouraging the ICE Director to enter into 287(g) agreements with local law enforcement units of various jurisdictions along the Mexican border to allow state and local law enforcement officers to enforce federal immigration laws. It also requires an immediate study into the southern border to identify vulnerabilities and directs the planning, design, construction and maintenance of a physical wall along the border with Mexico to begin right away.

Furthermore, the DHS head called for expansion of expedited removal ("ER"), authorizing application of ER to anyone who has not been continuously present in the country for the two years before apprehension and to individuals encountered anywhere in the United States. This is a change from the current policy of applying ER only to individuals apprehended within 100 air miles of the border and 14 days of entry. As for people who cannot be expeditiously removed and are placed in regular removal proceedings in front of an immigration judge, the memorandum instructs DHS personnel to return noncitizens arriving on land from Mexico or Canada, to the territory from which they arrived, pending formal removal proceedings.

The Secretary also directed USCIS, CBP and ICE to properly process unaccompanied alien children ("UAC") - children who come to the United States unlawfully and are without a parent or guardian. Under the new directive, the DHS personnel is required to follow-up on children who were originally designated as UACs, to ensure that they still meet the definition as they go through the removal process, especially when they are released into the custody of their parents in the United States.

The immediate effects of this memorandum will be increased and indiscriminate detention of individuals who do not have lawful status in the United States, explosion in DHS' spending to hire new agents/officers, build the wall, and house detainees, and possible elimination of some parole programs such as military parole in place and advance parole for adjustment of status applicants. Many families' lives will be disrupted as some members, many of whom might have been here for decades and contributing to the US economy and society, might be detained and removed from the United States even if they never committed a crime. Taxpayers will have to shoulder huge costs, $21 billion for the construction of the wall alone, that are not guaranteed to stop the flow of unauthorized immigrants.