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USCIS Releases Two Official Memos Implementing Executive Orders on Internal Enforcement and Border Enforcement

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On February 20, 2017, DHS issued two new memos implementing the president’s Executive Orders on internal enforcement and “border security.” Below is a summary of the key points covered by each of the memos:

Memo regarding the Executive Order on Border Security: 

 A. Encourages lawful detention as the most effective way of getting aliens physically removed from the U.S.

  • Lawful detention shall prevent aliens from committing crimes, ensure that they will appear for their removal proceedings, and increase the likelihood that they will actually be removed.
  • Discretionary parole authority shall be exercised on a case-by-case basis and only for urgent humanitarian reasons or for public benefit.
  • CBP and ICE should only release from detention those aliens detained pursuant to INA Section 235(B) on a case by case basis to the extent consistent with applicable statutes and regulations (further guidelines are provided in the memo).
  • Because the detention of all these aliens may not be immediately possible, resources should be prioritized to those who are flight risks and danger risks.

 B. Hiring more CBP Agents/Officers

  • CBP shall immediately begin hiring 5,000 additional Border Patrol agents and 500 Air and Marine Agents (subject to availability of resources).

C. Identifying and Quantifying Sources of Aid to Mexico

  • All executive departments must identify and quantify sources of aid to Mexico. The Under Secretary for Management shall then submit a report to Secretary of DHS reflecting historic levels of such aid or assistance. This report must be provided annually within 30 days of this memo.

D. Expansion of the INA 287(g) Provision in the Border Region

  • INA 287(g) authorizes DHS to enter into a written agreement with state or political subdivisions to authorize qualified officers or employees of these jurisdictions to perform the functions of an immigration officer.
  • DHS encourages more local jurisdictions to participate and CBP and ICE shall choose the most effective enforcement model.

E. Commissioning a Comprehensive Study of Border Security

  • Directs the Under Secretary for Management together with CBP and the Coast Guard to commission a study of the security of the southern border. The study should include all aspects of current border security including the availability of state and federal resources.

F. Border Wall Construction and Funding

  • CBP, together with the appropriate executive agencies, will begin planning, designing, constructing, and maintaining the wall using the appropriate materials and technology.

 G. Expanding DHS’ Authority to Apply Expedited Removal Proceedings to Aliens Who:

  • Have not been admitted or paroled into the US
  • Are inadmissible under the INA
  • Haven’t demonstrated to an Immigration Officer that they have been continuously physically present in the US 2 years prior to the determination of their inadmissibility

**Before the issuance of the memo, expedited removal had been exercised only to those aliens within 100 miles of the border and after 14 days of entry. This provision seriously expands an Immigration Officer’s expedited removal powers**

H. Returning Aliens of Contiguous Countries

  • To save DHS detention and adjudication resources, CBP and ICE personnel shall return aliens pending a formal removal proceeding who do not pose a risk of subsequent illegal reentry to their border home country.
  • ICE and CBP shall make available facilities for such aliens to appear via video conference to facilitate the completion of the removal proceedings.

 I. Enhancing Asylum Referrals and Credible Fear Determination

  • Asylum officer are to conduct credible fear interviews in a way that allow the officer to get all needed information out of alien to make a legally sufficient determination.
  • USCIS shall also increase the operational capacity of the Fraud Detection and National Security Directorate and continue to strengthen operation in field offices.
  • The Directors of USCIS, CBP, and ICE shall review fraud detection, deterrence and prevention measures throughout their agencies.

 J. Allocation of Resources and Personnel to Southern Border for Detention of Aliens

  • Detention of aliens apprehended at the border shall be prioritized due to higher likelihood of fleeing and not attending removal hearings.
  • CBP shall focus on actions to expand short-term detention at southern border; ICE shall focus on expansion of all other detention capabilities at the border and DHS shall increase number of asylum and FDNS officers assigned to these detention centers.

 K. Proper Use of Parole Authority

  • Parole authority should only be exercised on a case-by-case basis and should not be applied to classes.

L. Proper Processing and Treatment of Unaccompanied Minors at Border

  • Upon apprehension, CBP or ICE must promptly determine if the child meets definition of an unaccompanied alien child per definition in INA 279(g)(2), especially when being considered for legal protections afforded to such children.
  • CBP and ICE shall develop uniform written guidance and training for all employees regarding the proper processing of Unaccompanied Minors and timely and fair adjudication of their claims for relief for removal.

M. Accountability Measure to Protect Alien Children from Exploitation and Prevent Abuse of Immigration Laws

  • ICE and CBP shall ensure the proper enforcement of immigration laws against any individual who facilitates the illegal smuggling of an alien child in the US. Unaccompanied Alien Children are highlighted as a special concern.

 N. Prioritizing Criminal Prosecutions for Immigration Offenses Committed at the Border

  • Directors of Joint Task Forces, as well as ICE led Border Enforcement Security Task Forces (BESTs), shall plan and implement enhanced counter network operations aimed at disrupting transnational criminal organizations by increasing the number of special agents and analysts in the Northern Triangle ICE Attaché Offices and the number of vetted Transnational Criminal Investigative Unit international partners.

O. Public Reporting of Border Apprehensions Data

  • CBP and ICE shall develop a standardized method for public reporting of statistical data regarding aliens apprehended at or near the border for violating the immigration law. Uniform technology shall be used in a format that is easily understandable.

Memo regarding Executive Order on Enhancing Public Safety in the Interior of the United States:  

A. DHS’s Enforcement Provisions

  • DHS shall no longer exempt classes or categories of removable aliens from potential enforcement.
  • Department personnel shall prioritize for removal aliens that have criminal offenses, pose a national security threat, have engaged in fraud or willful misrepresentation of material fact (pursuant to INA Sections 212(a)(2), (a)(3), and (a)(6)(C)), have abused any program with regard to receipt of public benefits, are subject to a final order but have not departed the US, are convicted felons, or involved in gang activity or drug trafficking.

B. Strengthening Programs to Facilitate the Efficient and Faithful Execution of the Immigration Laws of the United States

  • The Priority Enforcement Program shall be terminated, the Secure Communities Program shall be restored and the Criminal Alien Program shall be expanded by ICE in any willing U.S. jurisdiction.
  • DHS shall eliminate the Immigration Detainer Forms (I-247D, N, X) and replace them with new forms to more effectively communicate with recipient law enforcement agencies (until such forms are updated, an interim measure may be used).
  • Coordination by EOIR, ICE and local authorities, especially with regard to initiating removal proceedings against criminal aliens.
  • Qualified state or local law enforcement officers shall be given the responsibilities of an Immigration Officer for the purpose of enforcing federal immigration law as a commitment to expanding the INA Section 287(g) program.

C. Exercise of Prosecutorial Discretion

  • Prosecutorial discretion shall ONLY be exercised on a case-by case basis in consultation with the head of the field office of the respective component.
  • It shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws.

D. Establishing the Victims of Immigration Crime Engagement (VOICE) Office

  • A liaison between ICE and the victims of crimes committed by removable aliens will ensure that the victim and family are provided with information about the offender; including their immigration status, custody status, etc.
  • Director of ICE is to immediately allocate any resource being used to advocate on behalf of illegal aliens to VOICE. All outreach or advocacy to illegal aliens will be terminated.

E. Hiring Additional ICE Officers and Agents

  • All appropriate measures will be taken to hire 10,000 agents and officers as well as additional mission support and legal staff.

F. Establishment of Programs to Collect Authorized Civil Fines and Penalties

  • USCIS to issue guidance and regulations to ensure assessment and collection of all fines and penalties from aliens and those aliens that are here unlawfully.

G. Aligning the Department’s Privacy Policies with the Law

  • DHS will no longer provide Privacy Act rights and protections to those who are neither US citizens nor LPRs.

H. Collecting and Reporting Data on Alien Apprehensions and Releases

  • The Director of ICE shall develop a standardized method of reporting statistical data, including uniform terminology and the use of a format that is easily understandable and accessible.
  • ICE Director shall also develop a public weekly report, free of charge, of non-Federal jurisdictions that release aliens from custody, showing the name of the jurisdiction, the citizenship and immigration status of the alien, the arrest, the charge or conviction the date on which the ICE detainer was served, the date of the alien’s release from custody of that jurisdiction and the reason for that release, etc.

 

 

 

 

 

 

 

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