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Legal Update

DHS Releases Memoranda on Implementing Executive Orders on Border Security and Immigration Enforcement

23 February 2017
Mayer Brown Legal Update

On Monday, February 20, 2017, the secretary of the US Department of Homeland Security (“DHS”) released two memoranda to provide guidance for the implementation of recent executive orders signed by President Donald Trump.

The first memorandum relates to the White House’s executive order regarding "Border Security and Immigration Enforcement Improvements," signed by the president on January 25, 2017. Key takeaways from the memorandum include:

  • DHS will detain individuals arriving in the United States who are deemed inadmissible or will require a hearing before an immigration judge to determine admissibility, as described in section 235(b) of the Immigration and Nationality Act (“INA”). The detention of these individuals will continue “pending a final determination of whether to order them removed, including determining eligibility for immigration relief” or unless release is mandated by court order or otherwise authorized by DHS.
  • DHS will apply its authority to expand the individuals eligible for expedited removal under Section 235(b) of the INA by publishing a notice in the Federal Register and will return individuals to the contiguous countries from which they arrived pending removal proceedings under Section 240 of the INA.
  • The memorandum also mandates the establishment of a plan for a “surge” of immigration judges and asylum officers to interview and adjudicate claims by recent border entrants as well as additional detention facilities to house these individuals. DHS will also increase the operational capacity of its Fraud Detection and National Security Directorate “to detect and prevent fraud in the asylum and benefits adjudication processes.” Finally, DHS will increase the number of special agents and analysts at the southern border “to dismantle transnational criminal organizations that are facilitating and profiting from the smuggling routes to the United States.”
  • Customs and Border Protection (“CBP”) will hire 5,000 additional Border Patrol agents and 500 additional Air and Marine agents and will ensure consistency in training and standards.
  • DHS will promulgate written policy guidance and training regarding the proper exercise of its parole authority to “exercise such parole authority only on a case-by-case basis, consistent with the law and written policy guidance.”
  • DHS will produce a report within 30 days that identifies all sources of direct and indirect aid and assistance to Mexico in the last five years. DHS will further develop a method for public reporting of statistical data regarding individuals apprehended at or near the border for violating immigration law.
  • CBP and Immigration and Customs Enforcement (“ICE”) will “engage immediately” all state and local law enforcement agencies qualified and willing to assist in the enforcement of federal immigration law through the 287(g) program.
  • DHS will commission a comprehensive study of the United States’ southern border security.
  • CBP will “immediately begin planning, design, construction and maintenance of a wall” along the United States-Mexico border.
  • DHS will develop uniform written guidelines and training for all employees for the proper processing of individuals entering the United States who are “unaccompanied minor children” as defined by statute.

The second memorandum takes steps to implement the president’s executive order regarding "Enhancing Public Safety in the Interior of the United States," signed by the president on January 25, 2017. Key takeaways from the memorandum include:

  • DHS will no longer exempt classes or categories of removable aliens from removal, and prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws.
  • DHS will hire 10,000 additional ICE officers and agents.
  • DHS will prioritize the removal of individuals with a criminal record, including individuals “who have been charged with any criminal offense that has not been resolved.”
  • CBP and ICE will enlist the assistance of all state and local law enforcement agencies qualified and willing to assist in the enforcement of federal immigration law through the 287(g) program.
  • DHS will, to the extent permissible by law, “immediately terminate the provision” of “any and all resources that are currently used to advocate on behalf of” undocumented individuals.
  • DHS will establish a program to collect all fines and penalties that DHS is authorized to levy from individuals who violate immigration laws and regulations.
  • DHS will develop a method for public reporting of statistical data regarding individuals apprehended, removed or released. ICE will then provide a weekly report to the public with this information.
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