Kelly Memorandum on Expedited Removal and Immigration Detention (Trump EO)

 

Introduction

On February 20, 2017, the Secretary of Homeland Security, John F. Kelly, issued a Department of Homeland Security (DHS) Memorandum titled “Implementing the President's Border Security and Immigration Enforcement Improvements Policies” (“Border Memo”) [PDF version]. The purpose of the Border Memo is to provide policy guidance regarding the implementation of President Donald Trump's January 25, 2017, Executive Order 13767 titled “Border Security and Immigration Enforcement Improvements” [82 FR 8793].

Expansion of Expedited Removal

In this article, we will review the guidance in the Memorandum regarding the expansion of expedited removal and new associated immigration detention policies. We will supplement the plain language of the Border Memo with guidance contained In a February 21, 2017, DHS FAQ titled “Q&A: DHS Implementation of the Executive Order on Border Security and Immigration Enforcement” (“DHS FAQ”) [link]. Furthermore, we will also reference a second Memorandum issued by Secretary Kelly on February 20, 2017, titled “Enforcement of the Immigration Laws to Serve the National Interest” (“Interior Enforcement Memo”) [PDF version].

Please see our overview of both of the Kelly Memoranda along with a table of contents to all of our articles discussing them [see article]. We have also published a comprehensive overview of Secretary Kelly's Border Memo [see article].

Note on DACA Recipients

Before starting, it is important to note that the guidance in the Border Memo does not apply to recipients of Deferred Action for Childhood Arrivals (DACA) [see article]. Although the Trump Administration may alter DACA in the future, both of the Kelly Memoranda and the DHS FAQ at Q30 make explicit that the new guidance does not apply to DACA recipients. For this reason, it is important for DACA recipients to continue following the rules associated with DACA and to consult with an experienced immigration attorney if any questions arise.

New Expedited Removal and Detention Rules

The Border Memo contains several provisions that will greatly increase the use of expedited removal under section 235 of the Immigration and Nationality Act (INA) and immigration detention for those subject to expedited removal.

The three most important parts of the Memorandum to this effect are sections G, A, and I. Section G provides for the expansion of expedited removal under section 235(b)(1)(A)(iii)(1). Section A provides for the expansion of immigration detention. Section I addresses credible fear interviews and determinations for those subject to expedited removal. In addition to these sections, we will address in brief other provisions of the Border Memo that explain the DHS's plan to allocate resources to implement these new policies.

The Border Memo also made changes to the processing of unaccompanied alien children that will in some cases be related to the issues discussed in this article. Please see our full article on the Border Memo's provisions for unaccompanied alien children [see article].

Expansion of Expedited Removal

Section G of the Border Memo covers guidelines for the expansion of the use of expedited removal.

As provided in section 235(b)(1) of the INA, expedited removal is an administrative removal procedure through which an alien can be removed without the conduct of a hearing before an immigration judge.

Expedited removal covers certain aliens who are inadmissible under section 212(a)(6)(C) and section 212(a)(7) of the INA. Section 212(a)(6)(C) provides for inadmissibility for fraud or the misrepresentation of a material fact to procure immigration benefits and for inadmissibility for falsely claiming citizenship [see article]. Section 212(a)(7) provides for inadmissibility for an alien who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document, and who does not have a valid unexpired passport, or other suitable travel document, or document of identity and nationality (if required).

Section 235(b)(1)(A)(i) provides that an alien who is determined to be inadmissible under section 212(a)(6)(C) or section 212(a)(7) at the time of arrival in the United States will be immediately subject to expedited removal unless he or she indicates an intention to apply for asylum or a fear of persecution. An alien who is an unaccompanied alien child, as defined in statute at 6 U.S.C. 279(g)(2), will not be subject to expedited removal. The rules for expedited removal for aliens arriving at the border or a port of entry under section 235(b)(1)(A)(i) are unchanged.

The Border Memo addresses 235(b)(1)(A)(iii). Section 235(b)(1)(A)(iii)(I) and (II) give the Secretary of Homeland Security (the statute says “Attorney General,” but under current law it is the Secretary) the authority to apply section 235(b)(1)(A)(i) — i.e., expedited removal — to any alien who has not been admitted or paroled into the United States and who fails to affirmatively show, to the satisfaction of an immigration officer, that he or she has been physically present in the United States continuously for the 2-year period immediately prior to the determination that the alien is inadmissible under section 212(a)(6)(C) or 212(a)(7).

However, under previous policy, the DHS did not exercise the maximum authority allowed by statute under section 235(B)(1)(A)(iii)(I) and (II). Rather, the DHS only applied expedited removal to aliens encountered within the United States who were within 100 air miles of the border and within 14 days of entry, and to aliens who arrived in the United States by sea other than at a port of entry. The Border Memo cites to the existing policy guidance in 67 FR 68924 (Nov. 13, 2002) [PDF version] and 69 FR 48877 (Aug. 11, 2004) [PDF version]. To read about the current rules (notwithstanding the Border Memo), please see our full article [see article].

In the Border Memo, Secretary Kelly cites to the broad authority afforded him by section 235(b)(1)(iii)(I) and (ii). He indicates an intent to begin applying section 235(b)(1)(iii)(I) to its maximum extent. The practical effect of such a change would be to subject many aliens who have entered or who will enter without being admitted or paroled into the United States to expedited removal who have not been subject to expedited removal under the existing guidelines. Secretary Kelly states that the DHS will publish in the Federal Register a new “Notice Designating Aliens Subject to Removal Under Section 235(b)(1)(a)(iii) of the Immigration and Nationality Act.” Furthermore, he states that these new guidelines may deviate from the current guidelines to conform to the maximum discretion provided to the Secretary of Homeland Security by Congress. Secretary Kelly instructed the Commissioner of the United States Customs and Border Protection (CBP) and the Director of the Immigration and Customs Enforcement (ICE) to implement his new policy as soon as it is published in the Federal Register.

Secretary Kelly justifies the rethinking of expedited removal primarily based on two considerations. First, he notes the high number of aliens who fail to appear at removal proceedings after being released from custody. Second, he notes the significant backlog currently being faced by Immigration Courts. The reassessment was also prompted by the language of President Trump's Executive Order itself, which encourages the full use of DHS's authority under the INA.

Analysis

Secretary Kelly's Border Memo suggests that a significant expansion of the use of expedited removal is forthcoming. If Secretary Kelly ultimately decides to use expedited removal to the maximum extent authorized by stature, a very significant number of aliens will become subject to removal without a hearing before an immigration judge who are not subject under the existing rules. It would become imperative for aliens who were neither admitted nor paroled and who have been in the United States continuously for at least two years to be able to provide proof of such presence in order to be entitled to normal, non-expedited section 240 removal proceedings (provided the alien does not have a credible fear of persecution or torture). Furthermore, the expansion of expedited removal would work in concert with the broadened enforcement priorities of the Trump Administration. However, it is important to note that expedited removal under section 235(b) is still limited to aliens who entered without inspection and aliens who were “admitted or paroled” based on fraud or misrepresentation of a material fact.

We will update the website as soon as the DHS publishes the new expedited removal rules. Those who may be affected or have questions should consult with an experienced immigration attorney for a case-specific consultation.

Immigration Detention

In section A of the Border Memo, Secretary Kelly explains that President Trump has determined “that the lawful detention of aliens arriving in the United States and deemed inadmissible or otherwise described in section 235(b) of the [INA] pending a final determination of whether to order them removed, including determining eligibility for immigration relief, is the most efficient means by which to enforce the immigration laws at our borders.” Secretary Kelly explains that the expanded detention priorities are consistent with the INA provisions for mandatory detention.

Secretary Kelly instructs that parole authority in lieu of detention under section 212(d)(5) should only be exercised on a case-by-case basis, and then only for humanitarian reasons or for significant public benefit. This is also in accord with section K of the Border Memo, which provides for hewing the use of parole authority more closely to the plain language of section 212(d)(5). To this effect, Secretary Kelly announced the end of any policies that have facilitated the release of removable aliens “apprehended at and between the ports of entry,” sometimes called “catch and release.”

Secretary Kelly sets forth two prerequisites that he must determine have been met before a stricter set of detention policies will be implemented(paraphrased):

  1. The Secretary determines that a joint plan with the Department of Justice (DOJ) has been established to surge the deployment of immigration judges and asylum officers to interview and adjudicate claims asserted by recent border entrants; and
  2. The Secretary determines that appropriate processing and detention facilities have been established.

Upon Secretary Kelly's determination that those prerequisites have been satisfied, he will instruct the CBP and the ICE to release from detention only aliens detained under section 235(b), who were apprehended after illegally entering or attempting to illegally enter the United States, in the following circumstances and on a case-by-case basis (paraphrased):

  1. When removing the alien under a statute or regulation;
  2. When the alien obtains an order granting relief or protection from removal or when the DHS determines that the individual is a citizen or noncitizen national of the United States, or an alien who is a lawful permanent resident (LPR), refugee, asylee, who holds temporary protected status (TPS), or who holds a valid immigration status in the United States;
  3. 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 withdrawing his or her application for admission, and the alien contemporaneously departs from the United States;
  4. When required to release the alien by statute or to comply with a binding settlement agreement issued by a competent judicial or administrative authority;
  5. 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 under section 212(d)(5) of the INA with the written concurrence of the Deputy Director of ICE or the Deputy Director of the CBP, except in pressing circumstances such as medical emergencies where seeking such approval is not practicable; or
  6. 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 the alien satisfies the ICE of his or her identity, that he or she presents neither a security risk nor a risk of absconding, and that he or she agrees to comply with any additional conditions of release imposed by the ICE.

Secretary Kelly also explains that the DHS will work to develop or revise regulations as appropriate to ensure that the regulations are in accord with the Border Memo. However, Secretary Kelly instructs DHS officers to continue applying regulations that are inconsistent with the Border Memo until such time that they are replaced or revised.

Nothing in the guidance should be interpreted to prevent the return of an alien who arrives on land from a foreign territory contiguous to the United States (Canada or Mexico) and who has removal proceedings pending under section 240 of the INA. To learn about the new guidance in this area, please see section H of our article on the Border Memo [see article H. Implementing the Provisions of Section 235(b)(2)(C) of the INA to Return Aliens to Contiguous Countries]

Analysis

Secretary Kelly is cognizant of the current limitations of the DHS's detention capacity, and he acknowledges that the detention of all individuals highlighted in the Border Memo “may not be immediately possible.” Therefore, in the meantime, he instructs DHS officers to prioritize detention resources “based upon potential danger and risk of flight.” Such prioritization will be made in accordance with current regulations found in 8 C.F.R. 212.5 and 235.3.

The extent to which the DHS is able to expand immigration detention will thus depend on its success in establishing new detention facilities and surging additional immigration judges and asylum officers to the border. Please see our overview of the Border Memo, specifically sections B, D, H, and especially J, to learn about some of the ways how DHS plans to increase its detention capabilities [see article]. Nevertheless, once Secretary Kelly determines that the prerequisites have been met and the DHS revises regulations inconsistent with such guidance, it is likely that the DHS will make greater use of immigration detention than it has in previous years. Regardless of the DHS's success in augmenting its detention capabilities, it will still be subject to statutes, court orders, and judicial and administrative settlement agreements in the detention of aliens specified in the Border Memo.

An individual who is detained or who may be subject to detention should seek to consult with an experienced immigration attorney immediately for guidance.

Credible Fear Interviews

Section I of the Border Memo provides limited information concerning the DHS's plans regarding credible fear interviews. An alien who is subject to expedited removal but who asserts a fear of persecution or torture when apprehended will be afforded a credible fear interview. If an asylum officer, or on review an immigration judge, determines that the alien has a credible fear of persecution or torture, her or she will be able to have a claim for asylum [see category] and/or withholding of removal under statute [see article] or under the Convention Against Torture [see article] adjudicated. We discuss credible fear issues on site [see section].

The Border Memo restates the standard for credible fear interviews, and it instructs DHS employees to ensure that they elicit all relevant information from interviewees and scrutinize it carefully. Furthermore, Secretary Kelly provides for the expansion of the DHS's fraud prevention capabilities to prevent individuals from abusing the credible fear interview process.

Although the Border Memo does not suggest any changes in the standards or protocols for conducting credible fear interviews, it suggests an emphasis by the DHS on focusing heavily on detecting fraud and ensuring that only individuals who meet the statutory standard are found to have established a credible fear of persecution or torture.

To read about the guidance in more detail, please see the relevant section of our article reviewing the entire Border Memo [see section I. Enhancing Asylum Referrals and Credible Fear Determinations Pursuant to Section 235(b)(l) of the INA].

Conclusion

The Border Memo suggests that very significant expansions to both expedited removal and immigration detention are coming in the near future. While the extent of these expansions will likely depend on funding and the DHS's capacity to muster resources, it is clear that the DHS is planning to implement significant changes from the current policies.

However, until the DHS formally implements the changes and publishes new guidance in the Federal Register, the specifics of the new policies will remain unclear. Those who may be affected or who otherwise have questions should consult with an experienced immigration attorney for further guidance.

We will update the website with information as soon as the DHS provides more information as to its plans in the areas discussed in this article.