Yesterday I published a summary of the leaked draft DHS memorandum regarding the implementation of President Trump’s Executive Order on Border Enforcement. The White House denial that the earlier memo was real appears to have been misleading as the memorandum released today has many sections with identical and appears to only be an edited version of the earlier document.

NOTE: Brackets [] indicate a change from the leaked draft.

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 obtains an order granting relief or protection from removal or DHS determines that the individual is a US citizen, national, lawful permanent resident, or has a valid immigration status in the US.
  3. ICE or CBP consent to the alien’s withdrawal of an application for admission and the alien departs the US;
  4. When required to do so by statute or to comply with a court order;
  5. When ICE or CBP consent to the alien’s parole into the US except in cases of exigent circumstances such as a medical emergency where seeking prior approval is impracticable; or
  6. When an arriving alien has established a “credible fear” of persecution or torture by an asylum officer or an immigration judge, providing the alien shows an ICE officer his or her identity, that he or she presents neither a security risk nor a risk of absconding and provided he or she agrees to comply with any additional conditions of release.

[NOTE: in the earlier draft, there was an exception for when ICE or CBP directs the return of the alien to a foreign country. Also, item 6 above is new.

Regulations may be developed or revised if this guidance doesn’t comply with current regulations.

[NEW in this draft] While DHS works to expand detention facilities, resources will be prioritized based upon potential danger and risk of flight. The guidance doesn’t prohibit the return of an alien who is arriving on land to the foreign territory contiguous to the US from which the alien is arriving pending a removal proceeding under Section 240 of the Immigration and Nationality Act.

B. Hiring More Border Patrol Agents

CBP shall, while ensuring consistency in training and standards, immediately begin hiring 5,000 additional Border Patrol agents and 500 Air & Marine Agents/Officers and get them working as soon as practicable. [The 500 air & marine agents is new language]

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, excluding intelligence activities 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? [NOTE: the language excluding intelligence activities is new]

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 enter into 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.

[NOTE: Language regarding the use of National Guard troops pursuant to 287(g) agreements is deleted in the final draft].

E. Commissioning a Comprehensive Study of Border Security

The DHS Undersecretary for Management, [in consultation with CBP, the Joint Task Force (Border) and the Coast Guard,] 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.

[This language from the leaked memo was deleted: “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.]

“To ensure the prompt removal of aliens apprehended at or near the border, the Department will publish in the Federal Register a new Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(a)(iii) of the Immigration and Nationality Act. I direct the Commissioner of CBP and the Director of ICE to conform the use of expedited removal procedures to the designations made in this notice upon its publication.”

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. [New language is added referencing implementing this in compliance with international treaty obligations]. Aliens will be allowed to appear via video teleconference.

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

[Original title of this section was “Restoring Integrity to Asylum Referrals and Credible Fear Determinations Pursuant to Section 235(b)(1) of the INA”]

[An inflammatory section indicating the credible fear system was rife with fraud has been removed. Here is how it was earlier summarized: 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.]

Asylum officers conducting credible fear interviews shall do so in a manner allowing interviewing officers to elicit all relevant information. Note: This appears to largely be a recitation of current policy.

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.

USCIS, CBP and ICE shall review fraud detection, deterrence and prevention measures in their agencies and will provide the DHS Secretary with a report within 90 days.

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. [CBP shall focus these actions on expansion of “short-term detention” (72 hours or less) capability and ICE will focus on expansion of all other detention capabilities. CBP and ICE should also explore options for joint temporary structures that meet appropriate stands for detention.] 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 “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 Section 212(d)(5) of the INA and exercise 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.

[New language is added noting that parole procedures for credible fear cases remains in effect. The burden is on the alien to show he or she is not a danger to the community or a flight risk.]

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. Accountability Measures to Protect Alien Children from Exploitation and Prevent Abuses of Our Immigration Laws

ICE and CBP shall enforce immigration laws against those who – directly or indirectly – facilitate the smuggling or trafficking of alien children into the US. This will include placing such individuals who are removable aliens into removal proceedings, or referring such individuals for criminal prosecution. IN OTHER WORDS, prosecuting parents as criminals if they pay someone to help their child cross into the US.

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

DHS states, without providing statistics, that a surge of illegal immigration at the southern border has produced a significant increase in organized crime in the border region. Various DHS agencies are directed to plan and implement task force operations directed at disrupting these organizations.

O. 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.

N. No Private Right of Action

[This is a new section]

“This guidance is not intended to, does not, and may not be relied upon to create any right or benefit, substantial or procedural, enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.”

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 gsiskind@visalaw.com.
Greg Siskind
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