February 22, 2017

DHS Memos Outline Enforcement Protocol Behind President Trump's Immigration Executive Orders

This week, the Department of Homeland Security (DHS) released two memos that detail how they will begin to implement President Trump’s recent executive orders on immigration enforcement. These memos, which lay out several policy steps to be taken in the coming months, mark a major shift in the ways in which federal agencies will enforce immigration laws.

Under the Obama administration, prioritization for deportation was given to undocumented immigrants who had been convicted of serious crimes. Under the new policy, any undocumented person with any level of criminal offense (including abuse of public benefits) will be subject to removal by the DHS.

This policy of “expedited removal,” which allows for Border Patrol and Immigration and Customs Enforcement (ICE) agents to speed up deportation proceedings in certain circumstances, will also be greatly expanded under the new proposals. Under President Obama, expedited removal was used only for individuals who had been apprehended less than 100 miles from the border and who had been in the country fewer than two weeks. Now, the policy will apply to persons anywhere in the country who have been here for two years or less.

ICE has also been directed to begin hiring 10,000 new agents to meet these new enforcement needs, while Customs and Border Protection will bring on another 5,000 agents. The memos do not provide details as to how these new hires will be paid for, though officials note that DHS may be able to transfer funds from other areas of its budget. 

One of the more contentious policies put forward in the memos is the re-enforcement of an old law that would allow immigration officials to return deportees to the country from which they crossed to the U.S. rather than their country of origin – effectively allowing for many undocumented individuals to be deported to Mexico. However, administration officials have said that they plan to deliberate with the Mexican government before putting this policy into effect.

The policy directives also call for a revival of the 287(g) program which allows ICE and other authorities to recruit local law enforcement agencies to assist with deportation and other federal immigration cases. The program was scaled back in 2012 amid concerns about racial profiling and eroding trust between police and local communities. It is likely that this proposal will face many of the same challenges that President Trump has encountered so far with his efforts to target “sanctuary cities,” as detailed in our February 13 legal update on the topic.

As things currently stand, DHS does not plan to use these new directives to target so-called “Dreamers” – persons brought to the U.S. illegally as children – or individuals who have qualified for the Deferred Action for Childhood Arrivals (DACA) program.

It is likely that these memos will bring about further lawsuits against the administration from civil liberties groups and from individuals who may have limited access to legal services under expedited deportation proceedings.

During President Obama’s eight years in office, the U.S. deported around 2.7 million people, the majority of whom had been convicted of a major crime.

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