Leaked DHS Memos Detail How Executive Orders Will Be Implemented

On Friday, two memos were signed by John Kelly, Secretary of the Department of Homeland Security (DHS) that detail how the DHS will be implementing President Trump’s executive orders related to border security and internal enforcement of immigration laws. One memo, entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” mainly deals with ways to prevent undocumented aliens from entering the United States. The other memo, entitled “Enforcement of the Immigration Laws to Serve the National Interest,” primarily focuses on enforcement efforts against undocumented foreign nationals who are in the country. Some of the key provisions in the memos are:

• In most circumstances, mandates the detention of undocumented aliens apprehended by U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) agents so that the undocumented aliens can be removed (i.e. deported) from the United States.

• Requires the heads of all executive departments to “identify and quantify all sources of direct and indirect federal aid or assistance” being given to the government of Mexico.

• Instructs ICE and CBP to increase cooperation with state and local law enforcement to assist in the “arrest and removal of criminal aliens.”

• Sets immigration enforcement priorities, but clarifies that immigration enforcement agencies “no longer will exempt classes or categories of removable aliens from potential enforcement.”

• Calls for establishment of programs “to ensure the assessment and collection of all fines and penalties which [the DHS] is authorized under the law to collect from aliens and those who facilitate their unlawful presence in the U.S.”

• Claims that “criminal aliens routinely victimize Americans and other legal residents,” and thus establishes a Victims of Immigration Crime Engagement (VOICE) Office to assist such victims.

• Calls for the hiring of thousands of additional border patrol agents and immigration enforcement officers.

Provision on Parole Programs

The border security memo also includes a provision related to parole programs, including the use of advance parole (AP). Per the memo:

“The practice of granting parole to certain aliens in pre-designated categories in order to create immigration programs not established by Congress, has contributed to a border security crisis, undermined the integrity of the immigration laws and the parole process, and created an incentive for additional illegal immigration.

“Therefore, the Director of USCIS, the Commissioner of CBP, and the Director of ICE shall ensure that, pending the issuance of final regulations clarifying the appropriate use of the parole power, appropriate written policy guidance and training is provided to employees within those agencies exercising parole authority, including advance parole, so that such employees are familiar with the proper exercise of parole under … the [Immigration and Nationality Act] and exercise such parole authority only on a case-by-case basis, consistent with the law and written policy guidance.” [Emphasis added.]

The fact that AP is specifically mentioned in the memo is sure to raise concerns among stakeholders. Many foreign nationals are familiar with the AP program in the context of being granted an AP document based on having a pending adjustment-of-status application (form I-485). It is important to understand, however, that AP is available to numerous unrelated groups of foreign nationals, such as for those enrolled in the Deferred Action for Childhood Arrivals (DACA) program and those in the United States who have been granted temporary protected status (TPS).

At this point, it is unclear whether the Trump Administration intends to take steps to limit the issuance and/or use of AP for all foreign nationals, or whether it will be targeting its use by certain categories of users, such as beneficiaries of the DACA and/or TPS programs. As soon as any new details emerge, the information will be posted on MurthyDotCom.

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