Immigration Memorandum “Enforcement of the Immigration Laws to Serve the National Interest” and DACA/DAPA

On February 20, 2017, John Kelly, the Homeland Security Secretary issued two Memoranda implementing President Trump’s Executive Orders.  The first Memorandum is entitled “Enforcement of the Immigration Laws to Serve the National Interest.”  It implements the Executive Order entitled “Enhancing um Public Safety in the Interior of the United States” that President Trump issued on January 25, 2017. The second Memorandum is entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” and implements President Trump’s Executive Order “Border Security and Immigration Enforcement Improvements,” issued by President Trump also on January 25, 2017.

The subject of this blog is the first Memorandum, “Enforcement of the Immigration Laws to Serve the National Interest.”

This Memorandum rescinds all prior directives, memoranda, or field guidance, to the extent that they conflict with this Memorandum (“Kelly Internal Enforcement Memorandum”).  There are two exceptions that Secretary Kelly informs will be subject to future memoranda.  The first exception is the June 15, 2012 Memorandum that established DACA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”), and second is the November 20, 2014 Memorandum that tried to establish DAPA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents”), to the extent that these do not conflict with the Kelly Internal Enforcement Memorandum ((because of crimes, gang activities, drug trafficking, or security risk),

The following people then should be exempted from the Kelly Internal Enforcement Memorandum for now.  The June 15, 2012 Memorandum establishing DACA covers the following people:

• An undocumented person who was under the age of 31 as of June 15, 2012;
• Who came to the United States before reaching 16th birthday;
• Who continuously resided in the United States since June 15, 2007, and up to the present time;
• Was physically present in the United States on June 15, 2012, and at the time of applying for DACA;
• Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
• Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
• Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The following people should also be exempted for now under the November 20, 2014 Memorandum.  That Memorandum tried to establish DAPA.  It also removed the requirement that limited DACA only to people who were under 31 as of June 15, 2012 (born  since June 15, 1981).  The November 20, 2014 Memorandum added the following persons yhsy should be currently exempt but subject to future memoranda and to the extent they do not conflict with the Kelly Internal Enforcement Memorandum:

• An undocumented individual living in the United States who is the parent of a U.S. citizen or lawful permanent resident;
• Who has lived in the United States continuously since January 1, 2010;
• Had, on November 20, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident; and
• Is not an enforcement priority for removal from the United States under the Kelly Internal Enforcement Memorandum.

The Kelly Internal Enforcement Memorandum Except directs ICE to hire 10,000 officer and agents “subject to available resources” and to take actions “consistent with available resources.” While rescinding any prior memoranda regarding enforcement priorities, the Kelly Internal Enforcement Memorandum sets its own priorities, which includes aliens that are inadmissible or deportable for crimes, are security threat, or who have committed fraud or material misrepresentation for immigration benefits.  The Memorandum also priorities removal of applicants for admission, including people who have been physically present in the United States for less than two years.

The Memorandum further prioritizes removal aliens who:

1. have been convicted of any criminal offense;
2. have been charged with any criminal offense that has not been resolved;
3. have committed acts which constitute a chargeable criminal offense;
4. have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
5. have abused any program related to receipt of public benefits;
6. are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
7. in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The Memorandum specifically mentions removable aliens “who are convicted felons or who are involved in gang activity or drug trafficking.”  It restores the Secure Community and seeks expansion in “any willing jurisdictions.”  According to the Memorandum “ removal proceedings shall be initiated against aliens incarcerated in federal, state, and local correctional facilities.”

It directs ICE and CBP to expand the program that deputizes local police forces to perform immigration enforcement,” including the authority to investigate, identify, apprehend, arrest, detain, and conduct searches authorized under the INA, under the direction and supervision of the Department.”  They have “full authority to arrest or apprehend an alien whom an immigration officer has probable cause to believe is in violation of the immigration laws.”  The immigration officers will have authority to “initiate removal proceedings against any alien who is subject to removal under any provision of the INA, and to refer appropriate cases for criminal prosecution.”  Immigration officers have  the ability to exercise discretion on a case by case basis in consultation with the head of the field office component that initiated the enforcement action,  but will not have a discretion based on a “class” of aliens, but rather each case will be considered individually.

The Memorandum also will establish an office, called Victims of Immigration Crime Engagements (VOICE) that provides information to victims of crimes by foreign nationals.  It removes certain Privacy Law restrictions and instructs the ICE Director to “develop and provide a weekly report tot he public” regarding crimes and refusal of immigration detainers.

It  also intends to establish programs to collect authorized civil fines and penalties.  Although it is not clear what kind of fines and penalties the Memorandum addresses, the INA currently authorizes various fines, including document fraud sanctions ($250 to $5,000); penalty for entering without inspection ($50 to $250 for each entry, or twice as much if the alien was previously subject to penalty); failure to depart (up to $500); employer sanction for employment of unauthorized workers (from $250 to $10,000) and others.

One thing to keep in mind is that the Immigration and Nationality Act provides for waivers, cancellation of removal, and other defenses to removal.  Therefore, people who are concerned about their status should contact an immigration attorney to determine whether they have any options.  Given that the Memorandum will target people who have been in the US for less than two years, people should begin gathering evidence of physical presence and evidence that they fall under the DACA/DAPA aliens exempted under the current memorandum.