document was published today that purports to lay out DHS’ strategy for implementing the Border Security and Immigration Enforcement Improvements Executive Order  which was signed by President Trump on January 25th. The memorandum from Secretary Kelly is dated January 25th. The White House is denying the memorandum section on use of national guard troops is accurate, but he did not state that the memorandum is fraudulent or that other sections of the memorandum reflect current DHS policy. My observation is that it may not have been adopted, but the document itself appears genuine.

A. Policies Regarding the Apprehension and Detention of Aliens Described in Section 235 of the INA.

The new policy is to detain all arriving aliens pending a review of their inadmissibility and eligibility for immigration benefits. Exceptions may be made and individuals paroled in to the on a case by case basis for humanitarian reasons or significant public benefit. Any policies that result in “catch-and-release” must end.

Detention is mandatory in all but the following circumstances:

  1. Removing the alien from the US pursuant to a statute or regulation;
  2. When the alien has a final order granting relief from removal;
  3. When ICE or CBP consent to the alien’s withdrawal of an application for admission and the alien departs the US;
  4. When an ICE or CBP direct the return of the alien to a foreign country;
  5. When required to do so by statute or to comply with a court order;
  6. When ICE or CBP consent to the alien’s parole into the US.


B. Hiring More Border Patrol Agents

CBP shall immediately begin hiring 5,000 additional Border Patrol agents and get them working as soon as practicable.


C. Identifying and Quantifying Sources of Aid to Mexico

DHS is directing the Under Secretary for Management to identify all sources of direct and indirect aid or assistance from every department component to the Government of Mexico for the last five fiscal years. QUERY: Are these departments within DHS or all of government?


D. Expansion of the 287(g) Program to Include State Guard Units in the Border Region

ICE being directed to engage with all willing and qualified state and local law enforcement agencies to eintoin to new 287(g) agreements which permit law enforcement agencies to engage in immigration enforcement. CBP and ICE being directed to try to reach 287(g) agreements with governors of southwestern states to authorize members of the State National Guard to engage in immigration enforcement.


E. Commissioning a Comprehensive Study of Border Security

The DHS Undersecretary for Management is directed to commission an immediate, comprehensive study of the security of the southern border. It shall include all aspects of the current border security environment and the availability of resources to implement a border security strategy that will achieve operational control of the border.


F. Border Wall Construction and Funding

The Undersecretary of Management is directed to identify all sources of available funds for the planning, design and construction of a border wall and develop requirements for long-term funding of the project.


G. Expanding Expedited Removal Pursuant to Section 235(b)(1)(A)(iii)(I) of the INA

Pursuant to Section 235(b)(1)(A)(iii)(I) of the INA, DHS has authority to remove individuals that have not shown that they have been continuously physically present in the US for the two-year period immediately prior to the determination of their inadmissibility. DHS will apply this more broadly than in the past.

“The recent surge of illegal immigration at the southern border has overwhelmed federal agencies and resources” [No citation provided for this very debatable statement]. Immigration courts are severely backlogged. DHS is directing CBP and ICE to apply expedited removal provision immediately to all aliens apprehended anywhere in the US who have not been admitted or paroled in to the US and who have not affirmatively shown to the satisfaction of an immigration officer that the alien has been continuously physically present in the US for the 90-day period immediately prior to the determination of their inadmissibility.


H. Implementing the Provisions of Section 235(b)(2)(C) of the INA to Returning Arriving Aliens to Contiguous Countries.

Section 235(b)(2)(C) allows aliens arriving on land from a country bordering the US to be returned back to that country pending the final resolution of removal proceedings. Aliens will be allowed to appear via video teleconference.


I. Restoring Integrity to Asylum Referrals and Credible Fear Determinations Pursuant to Section 235(b)(1) of the INA

DHS cites statistic that 34,000 of 48,000 credible fear screenings for people seeking asylum at the time of entering the US result in a finding of credible fear. But “far fewer” of those aliens were granted asylum on the basis of those claims [no citation provided]. DHS also notes a 35% increase in asylum applications in 2016 and 20,000 of those applicants claiming to have been in the US for more than 10 years. DHS states that most of these claims are baseless and made in order to get relief from removal. DHS is essentially directing asylum officers ask a lot more questions in order to come up with reasons to deny cases.

DHS is directing the Fraud Detection and National Security Directorate to more closely integrate its operations with the Refugee, Asylum, and International Operations Directorate to detect and prevent fraud in the asylum program.


J. Allocation of Resources and Personnel to the Southern Border for Detention of Aliens and Adjudication of Claims

ICE and CBP are directed to take all action and spend all resources to expand detention capabilities and capacities at or near the border with Mexico. USCIS is directed to increase the number of asylum officers and anti-fraud officers assigned to detention facilities located near the Mexican border to adjudicate credible fear, reasonable fear, and asylum claims and counter asylum-related fraud.


K. Proper Use of Parole Authority Pursuant to Section 212(d)(5) of the INA

USCIS, CBP and ICE shall ensure that “until final regulations are promulgated clarifying the legitimate scope of the parole power, through written policy guidance and appropriate training that all employees within those agencies exercising parole authority under section 212(d)(5) of the INA are familiar with the basic exercise of parole under that provision and exercise such parole authority only on a case-by-case basis, consistent with written policy guidance.” This would seemingly jeopardize the entire advance parole process for green card applicants who only have to show travel is needed for business or personal reasons versus showing a humanitarian of public benefit reason for their travel. Parole-in-place and other parole programs are seemingly in jeopardy as well.


L. Proper Processing and Treatment of Unaccompanied Alien Minors Encountered at the Border

DHS believes many children are being wrongly classified as an “unaccompanied alien child” because they end up in the care of a parent illegally residing in the US once they are released. USCIS, CBP and ICE are directed to develop uniform written guidance and training for all employees and contractors regarding the proper processing and custodial placement of unaccompanied alien minors, the timely and fair adjudication of their claims for relief from removal and their safe repatriation at the end of removal proceedings. Review procedures shall be established to determine if alien minors who are initially determined to be an unaccompanied child remain eligible.


M. Prioritizing Criminal Prosecutions for Immigration Offenses Committed at the Border

CBP and ICE are directed to create a task force to enhance border security and deter crime through the investigation and prosecution of violations of federal law within their respective law enforcement authorities.


N. Public Reporting of Border Apprehension Data

CBP and ICE will develop a standardized method for public reporting of statistical data regarding aliens apprehended at or near the border for immigration law violations. The reportsing will include information on convicted criminals, gang members, prior immigration violators and the reason for any releases.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at
Greg Siskind
Share →
%d bloggers like this: