On February 20, 2017, the U.S. Department of Homeland Security released a memorandum entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies.” The memorandum establishes new policies that call for the detection, apprehension, detention, and removal of undocumented immigrants residing in the United States unlawfully. The policies outlined in this memorandum will replace the former President’s deportation policies. According to the directive, the removal of undocumented immigrants will be prioritized based upon the potential danger the individual poses to citizens of the United States and the potential risk of flight.
Among other things the directive mandates the following:
- Expand the 287(g) program, which authorizes state and local law enforcement officials to assist federal law enforcement in investigating, identifying, apprehending, arresting, detaining, transporting, and searching undocumented immigrants;
- Immediately begin planning, design, construction and maintenance of a land border wall between the United States and Mexico;
- Expand the scope of expedited removal of undocumented immigrants pursuant to section 235(b)(1)(A)(iii)(I) of the Immigration and nationality Act, to detain and expeditiously remove undocumented immigrants apprehended at the border, who have been ordered removed from the United States after being denied relief from deportation;
- It shall be the policy of the United States pursuant to 235(b)(1)(A)(i) of the INA, to order the expeditious removal of arriving immigrants that are determined to be inadmissible to the United States under section 212(a)(6)(C) or section 212(a)(7) of the INA WITHOUT a hearing or review before an immigration judge, UNLESS the undocumented immigrant is an unaccompanied child as defined in 6 U.S.C. section 279(g)(2), or an undocumented immigrant who seeks to apply for asylum or a fear of prosecution or torture or a fear of return to his or her country, or claims to have lawful immigration status as a citizen or permanent resident of the United States;
- Expedited removal provisions will apply to undocumented immigrants apprehended or encountered within 100 air miles of the border with 14 days of entry, and undocumented immigrants arriving by sea other than a port of entry. Individuals who may be expeditiously removed are those who have not been admitted or paroled into the United States, who are inadmissible to the United States under section 212(a)(6)(C) or section 212(a)(7) of the INA, and who have failed to demonstrate their continuous physically presence in the United States for a two-year period prior to the determination of their inadmissibility;
- DHS will publish the “Notice Designating Aliens Subject to Expedited Removal under section 235(b)(1)(a)(ii) of the Immigration and Nationality Act” in the Federal Register and enforce the provisions among its publication;
- Pursuant to section 1232, Title 8, United States Code, CBP and ICE personnel where appropriate and practical will return aliens described in section 235(b)(2)(A) of the INA, placed in removal proceedings under section 240 of the INA. ICE will establish an interoperable video teleconference system and conduct removal hearings by video teleconference;
- Generally, aliens physically present in the United States or arriving aliens may apply for asylum regardless of their lawful status. Aliens who have been ordered expeditiously removed, who wish to apply for asylum based on a credible fear of persecution or torture, will be referred to an asylum officer to determine the merits of their claim;
- DHS will continue to authorize temporary parole to aliens who have applied for admission for urgent humanitarian reasons or significant public benefit, on a discretionary case-by-case basis. Parole will be grant only where it is necessary. This practice will be granted sparingly. Employees will be trained to ensure parole is granted only in cases demonstrating urgent humanitarian reasons or significant public benefit;
- Unaccompanied children apprehended at the border will be transferred to the custody of the Office of Refugee Resettlement with the Department of Health and Human Services. Such children are entitled to special protections including placement in a care facility, access to social services, removal proceedings before an immigration judge, and adjudication of asylum claims by USCIS. Unaccompanied children will not be subject to expedited removal proceedings; and
- To combat drug trafficking, human trafficking, and human smuggling, the Joint Task Force and ICE Border Enforcement Security Task Force will plan and implement counter network operations in cooperation with federal, state, and local agencies to undermine the criminal conduct of dangerous criminals.
In addition, this new directive has carved out 6 categories of undocumented immigrants who may be released from detention on a case-by-case basis, after having been ordered expeditiously removed for illegally entering or attempting to enter the United States:
- When removing the alien from the United States pursuant to statute or regulation;
- When the alien obtains an order granting relief or protection from removal or the Department of Homeland Security (DHS) determines that the individual is a U.S. citizen, national of the United States, or an alien who is a lawful permanent resident, refugee, asylee, holds temporary protected status, or holds a valid immigration status in the United States;
- When an ICE Field Office Director, ICE Special Agent-in-Charge, U.S. Border Patrol Sector Chief, CBP Director of Field Operations, or CBP Air & Marine Operations Director consents to the alien’s withdrawal of an application for admission, and the alien contemporaneously departs from the United States;
- When required to do so by statute, or to comply with a binding settlement agreement or order issued by a competent judicial or administrative authority;
- When an ICE Field Office Director, ICE Special Agent-in-Charge, U.S. Border Patrol Sector Chief, CBP Director of Field Operations, or CBP Air & Marine Operations Director authorizes the alien’s parole pursuant to section 212(d)(5) of the INA with the written concurrence of the Deputy Director of ICE or the Deputy Commissioner of CBP, except in exigent circumstances such as medical emergencies where seeking prior approval is not practicable. In those exceptional instances, any such parole will be reported to the Deputy Director or Deputy Commissioner as expeditiously as possible; or
- Asylum: When an arriving alien processed under the expedited removal provisions of section 235(b) has been found to have established a “credible fear” of persecution or torture by an asylum officer or an immigration judge, provided that such an alien affirmatively establishes to the satisfaction of an ICE immigration officer his or her identity, that he or she presents neither a security risk nor a risk of absconding, and provided that he or she agrees to comply with any additional conditions of release imposed by ICE to ensure public safety and appearance at any removal hearings.
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