DHS Guidance Memos Chart Aggressive Course to Implement President Trump’s Executive Orders on Immigration Enforcement

On February 20, 2017, U.S. Secretary of Homeland Security John Kelly released two new policy memoranda aimed at implementing President Trump’s executive orders on enhancing the public safety of the interior and border enforcement of immigration laws.

The first memo, titled “Enforcement of the Immigration Laws to Serve the National Interest,” immediately rescinded President Obama’s Priority Enforcement Program, which prioritized deportation of criminals and recently-arrived undocumented individuals, and gives immigration officials broad authority to deport “all removable aliens,” including those who have “committed acts which constitute a chargeable criminal offense” and those who “pose a risk to public safety or national security.” These enforcement guidelines mark a major policy shift that aims to dramatically escalate deportations of undocumented immigrants, potentially encompassing individuals who commit minor offenses like traffic infractions or who receive government assistance.

Secretary Kelly’s second memo, titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” implements a dramatic expansion of expedited removal, a procedure that allows a U.S. Department of Homeland Security (DHS) official to remove a noncitizen from the U.S. without a hearing before an immigration judge. Prior to this memo, DHS limited its application of this summary procedure to inadmissible noncitizens who either arrived at a port of entry or were apprehended within 14 days of their arrival and within 100 miles of an international land border. Under the new guidance, DHS is now authorized to apply expedited removal to anyone who has not been continuously present in the country for the two years before apprehension and to individuals encountered anywhere in the United States.

The memoranda instruct DHS to immediately hire thousands of immigration enforcement officials, including 10,000 Immigration and Customs Enforcement (ICE) agents and 5,000 Border Patrol agents, as well as additional operational and support staff. Notably, the memos do not address how DHS will obtain the necessary funding for this hiring surge. Moreover, both memos call for a dramatic increase in the use of local law enforcement to act as immigration agents and enforce immigration law under Section 287(g) of the Immigration and Nationality Act. 

While the memoranda do not rescind President Obama’s Deferred Action for Childhood Arrivals program, they make it evident that any undocumented immigrant who is charged with a crime, however minimal, is now eligible for deportation.