Kelly Memorandum on Enforcement Priorities (Trump EO)

 

Introduction

On January 20, 2017, the Secretary of Homeland Security, John F. Kelly, issued a Memorandum titled “Enforcement of the Immigration Laws to Serve the National Interest” (“Interior Enforcement Memo”) [PDF version]. The Interior Enforcement Memo provides guidance for Department of Homeland Security (DHS) officers when implementing President Donald Trump's January 25, 2017 Executive Order (EO) 13768 titled “Enhancing Public Safety in the Interior of the United States” [82 FR 8799]. On February 21, 2017, the DHS released a Q&A on the Interior Enforcement Memo titled “Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States” [PDF version].

Kelly Memorandum

We reviewed the Interior Enforcement Memo in detail on site [see article]. In this article, we will focus on the Interior Enforcement Memo's new immigration enforcement priorities. We have already posted a short article on the provision of new enforcement priorities in EO 13768 [see article]. We will also discuss how the Interior Enforcement Memo rescinded the civil enforcement priorities of the Obama Administration [see blog].

The Interior enforcement memo is also related to another DHS Memorandum published on the same day relating to border security titled “Implementing the President's Border Security and Immigration Enforcement Improvements Policies” (“Border Memo”) [see article]. Please see our overview of both Memoranda for a complete table of contents of all of the articles we have on the subject [see article].

DACA Unaffected

In the introductory section to the Interior Enforcement Memo, Secretary Kelly makes explicit that the June 15, 2012 memorandum titled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” and the November 20, 2014 memorandum titled “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” remain in effect. The first of these encompasses the guidance for the Deferred Action for Childhood Arrivals (DACA) program [see article]. This means that notwithstanding anything in either of the February 20, 2017 Kelly Memoranda, DACA remains in effect. The second referenced Memorandum contains the guidance for Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). In June of 2016, the Supreme Court upheld a lower court injunction against the bulk of the DAPA guidance, and sent the issue back to the lower courts [see blog]. However, certain parts of the guidance as stated in these two memoranda that apply to DACA remain in effect.

This guidance means that DACA recipients will be unaffected by the new enforcement priorities so long as they follow the rules of DACA and renew DACA in a timely manner. Although DACA is subject to be modified or revoked at any time, neither the Interior Enforcement Memo nor the Border Memo make any changes to the DACA program. The DHS Q&A makes clear at Q22 that the neither Memorandum affects DACA.

Obama Administration Civil Enforcement Priorities Rescinded

Secretary Kelly rescinded all other (DACA being the exception) “existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws.” Notably, Secretary Kelly singled out the November 20, 2014 memorandum titled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” which had provided the guidance for the Obama Administration's civil enforcement priorities. You may read our article about the priorities to compare to the new priorities of the Trump Administration [see article]. Secretary Kelly also rescinded the “Secure Communities” Memorandum issued on the same day, which discontinued the DHS's Secure Communities Program.

The Obama Administration's civil enforcement priorities were far narrower than the new enforcement priorities of the Trump Administration. The priorities set forth in then-Secretary of Homeland Security Jeh Johnson's November 20, 2014 memorandum deprioritized many aliens in the United States from removal. As we will see, the policy set forth in the Interior Enforcement Memo sweeps far more broadly.

Principles Underlying New Enforcement Priorities

In section A of the Interior Enforcement Memo, Secretary Kelly instructed DHS personnel to “faithfully execute the immigration laws of the United States against all removable aliens.” In section B of the Interior Enforcement Memo, Secretary Kelly determined “that the faithful execution of our immigration laws is best achieved by using all these statutory authorities [to detain and remove aliens] to the greatest extent practicable.” Both of these statements set forth the DHS's intention to enforce the provisions of the Immigration and Nationality Act (INA) relating to the removal of removable aliens to the greatest extent practicable.

In accordance with the above principles, Secretary Kelly stated that the DHS “no longer will exempt classes or categories of removable aliens from potential enforcement,” except those who are protected under DACA. The DHS FAQ reflects this guidance at A19, stating that the DHS will not only no longer exempt classes or categories of removable aliens from potential enforcement, but also that “[a]ll of those in violation of the immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States.”

Enforcement Priorities

In section A of the Interior Enforcement Memo, Secretary Kelly describes the new Enforcement Priorities. Firstly, while all aliens in the United States are subject to immigration laws and enforcement, Secretary Kelly noted that the DHS has only finite resources. Therefore, “in order to maximize the benefit to public safety, to stem unlawful migration and to prevent fraud and misrepresentation,” Secretary Kelly instructed DHS personnel to prioritize aliens described in the following sections of the INA:

  • 212(a)(2) — Inadmissibility for “Criminal and related grounds”;
  • 212(a)(3) — Inadmissibility for “Security and related grounds”;
  • 212(a)(6)(C) — Inadmissibility for “Misrepresentation”;
  • 235(b) — Aliens who entered without being admitted or paroled (sometimes subject to expedited removal);
  • 235(c) — Aliens subject to administrative removal for being inadmissible on security and related grounds;
  • 237(a)(2) — Deportability for “Criminal offenses” [see article]; and
  • 237(a)(4) — Deportability for “Security and related grounds.”

In one sense, these appear to be enforcement priorities in accord with the post-November 2014 priorities of the Obama Administration. However, a significant difference is that Secretary Kelly makes clear that aliens not described by the above provisions are not deprioritized for removal. In other words, while Secretary Kelly instructed the DHS to focus its limited enforcement resources on aliens described by the above sections of the INA, he also directed DHS not to decline to bring enforcement action against those who are not so described. This means that an alien who is not described by one of the foregoing provisions of the INA cannot rely on that fact as a defense against DHS's initiating of removal proceedings.

Next, Secretary Kelly lists the new enforcement priorities. Secretary Kelly instructs DHS personnel to prioritize removable aliens, regardless of their basis of removability, 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.

First, it is important to note that these seven priorities apply to aliens who are already removable (note that an alien could be removable due to, for example, a conviction under the first item on the list of priorities). Second, these priorities are not ordered. Rather, any removable alien described by any of the seven priorities is a top enforcement priority.

In DHS Q&A Q/A 18, the DHS states with regard to priority 5 that any removable alien who “knowingly defrauded the government or a public benefit system” will be a priority enforcement target. This means that there is no threshold of abuse, but rather any abuse will render a removable alien a top priority for enforcement action.

Although no removable aliens are deprioritized for immigration enforcement, the DHS Q&A at Q/A 20 states that the United States Immigration and Customs Enforcement (ICE) “should prioritize several categories of removable aliens who have committed a crime, beginning with those convicted of a criminal offense.”

Notably, entry without inspection is, under U.S. law, a “chargeable offense.” Accordingly, under the plain language of the Interior Enforcement Memo, an alien who enters without inspection would be considered a top priority for enforcement. However, it is worth noting that neither the Interior Enforcement Memo nor the DHS FAQ on the Memo addresses this issue specifically.

Prosecutorial Discretion

The civil enforcement priorities of the Obama Administration were based on the concept of prosecutorial discretion. This refers to the authority of prosecutors to choose how to allocate law enforcement resources within the discretion allotted by the relevant statutes and administrative guidance.

In the Interior Enforcement Memo, Secretary Kelly greatly narrows the scope of prosecutorial discretion and the officials who may approve the exercise of prosecutorial discretion on a case by case basis. Furthermore, Secretary Kelly reiterated that prosecutorial discretion “shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from the enforcement of the immigration laws. Rather, determinations regarding prosecutorial discretion must be made solely on a case-by-case basis.

Secretary Kelly instructed the General Counsel to issue guidance consistent with the principles of the Interior Enforcement Memo regarding the exercise of prosecutorial discretion to all attorneys involved in immigration proceedings.

Please see section C of our overview of the Interior Enforcement Memo to learn about the new provisions for prosecutorial discretion in more detail [see article].

Interaction with the Border Memo

Secretary Kelly's Border Memo called for the implementation of regulations to greatly expand the scope of expedited removal to aliens who entered the United States without inspection. In conjunction with the new enforcement priorities, this suggests that the DHS will emphasize immigration enforcement against those who enter the United States without inspection. Please see our full article to learn about the expansion of expedited removal [see article].

Potential Future Developments

In concluding section A of the Interior Enforcement Memo, Secretary Kelly gave the Director of ICE, the Commissioner of the United States Customs and Border Protection (CBP), and the Director of the United States Citizenship and Immigration Services (USCIS) the discretion to “issue further guidance to allocate appropriate resources to prioritize enforcement activities within these categories…” To this effect, Secretary Kelly suggested that may be appropriate to prioritize “convicted felons” or those “who are involved in gang activity or drug trafficking.”

However, it is important to note that any guidance issued by the ICE, CBP, or USCIS must be in accord with the guidance in the Interior Enforcement Memo. This means that none of these three agencies, which exist under the umbrella of DHS, may issue guidance exempting any class of removable aliens from immigration enforcement.

Implementing the Guidance

The Interior Enforcement Memo includes several directives for augmenting the DHS's capacity to enforce the immigration laws [see article]. Furthermore, please see our article on the Border Memo to learn about the DHS's plans to increase its capacity to detain aliens subject to immigration detention [see article].

Prioritization of the Criminal Alien Program

Secretary Kelly instructed the ICE to devote available resources to expanding the use of the Criminal Alien Program in any willing jurisdiction in the United States. The ICE's Criminal Alien Program provides for the identification, arrest, and removal of aliens who are incarcerated in Federal, state, and local prisons and jails [PDF version]. The goal of the Criminal Alien Program is to procure final orders of removal against removable aliens while they are under incarceration and before they are released to ICE custody. The ICE explains that this limits the time such aliens have to spend in ICE custody.

In accordance with this proposal, Secretary Kelly instructed the relevant DHS officers to work in coordination with the Executive Office of Immigration Review (EOIR), which is under the jurisdiction of the Department of Justice (DOJ), to initiate removal proceedings against removable aliens incarcerated in federal, state, and local correctional facilities under the Institutional Hearing and Removal Program authorized by section 238(a) of the INA.

Section 238(a) allows for special removal proceedings at federal, state, and local correctional facilities for any aliens convicted of an offense covered in section 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 237(a)(2)(A)(ii), or otherwise covered by section 237(a)(2)(A)(i). These removal proceedings are generally to be conducted under section 240 of the INA.

Furthermore, Secretary Kelly instructed the DHS to pursue expedited proceedings, as provided by section 238(a)(3), for any alien convicted of an aggravated felony before the alien's release from incarceration for the underlying aggravated felony.

However, it is important to note that section 238(a) and the ICE's Criminal Alien Program often require the cooperation of state and local jurisdictions. This means that the implementation of this part of the Interior Enforcement Memo will not necessarily be uniform throughout the United States.

Conclusion

The enforcement priorities outlined in the Interior Enforcement Memo reflect the DHS's determination to enforce the immigration laws to the greatest extent practicable. This imperative was set by President Trump's Executive Order on interior enforcement.

The new enforcement priorities are sweeping, and they make clear that no removable aliens other than those protected under DACA will be deprioritized for immigration enforcement. Unlike under the Priority Enforcement Program that preceded the Interior Enforcement Memo, a removable alien will not be able to appeal to being a low priority for enforcement in avoiding enforcement action.

Nevertheless, although all removable aliens will be subject to removal, the Interior Enforcement Memo does recognize DHS's limited resources. It expresses an intent to prioritize the use of DHS's resources against certain classes of aliens who either pose a danger to the community or to national security, or who violate the immigration laws in flagrant ways. A key difference, however, is that other aliens will not be deprioritized. For example, under the Priority Enforcement Program under the Obama Administration, when a priority 1 alien was apprehended, ICE would often not have apprehended his or her spouse who was also present illegally if such spouse did not fall under one of the top enforcement priorities. Under the new policy, the ICE would have no impediment to apprehending the spouse who was in the United States illegally as well, even if he or she did not fit in one of the priority categories.

An alien who is charged as removable should consult with an experienced immigration attorney immediately. Although the new priorities expand the number of aliens the DHS intends to bring enforcement action against, they do not alter the statutory avenues for relief from removal. Furthermore, in certain cases, an experienced immigration attorney may find that the situation merits advancing an argument for the exercise of prosecutorial discretion. An alien who otherwise has questions about how the new policies may affect him or her should consult with an experienced immigration attorney.