Overview of the Kelly Border Security Memorandum (Trump EO)
Introduction
On January 20, 2017, Secretary of Homeland Security John F. Kelly issued a Memorandum titled “Implementing the President's Border Security and Immigration Enforcement Improvements Policies” [PDF version]. The Memorandum provides guidance for Department of Homeland Security (DHS) officers in implementing the policies set forth in President Donald Trump's Executive Order (EO) 13767 titled “Border Security and Immigration Enforcement Improvements” [82 FR 8793]. The Memorandum covers various issues related primarily to border security. To improve understanding of the Memorandum and the new policies, the DHS published a document on February 21, 2017, titled “Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States” [link]. We will also rely on the DHS FAQ for clarification of certain provisions of the Memorandum in this article.
In this article, we will provide a general overview of the contents of the Memorandum. Please see our overview of both this Memorandum and the Kelly Memorandum on interior enforcement for a full directory of articles that go into various issues from the Memoranda in depth [see article]. In the text of the article, we will provide links to more detailed articles on several of the issues addressed by the Memorandum.
Overview of the Memorandum
The Memorandum contains 16 sections covering a variety of issues. In the forthcoming subsections of this article, we will review each section of the article and provide a brief description of the provisions along with analysis. The title of each subsection in this article will correspond with the name of a section in the Memorandum. We will provide links to detailed articles for a few of the sections that require more detailed examination.
For those interested only in the provisions of the Memorandum that will or may directly affect individuals' encounters with the immigration laws, please consult the following subsections (clickable): A, D, G, H, I, J, K, L, and M.
Before reading, please note that the DHS FAQ at Q30 makes clear that the Memorandum does not affect recipients of Deferred Action for Childhood Arrivals (DACA) [see article].
A. Policies Regarding the Apprehension and Detention of Aliens Described in Section 235 of the Immigration and Nationality Act
In this section, Secretary Kelly establishes new policies for the apprehension and removal of aliens described in section 235 of the INA. The section specifically focuses on the detention provisions of section 235(b). This section also provides limited provisions for the parole of such aliens.
Please see our full article to learn more about this part of the Memorandum [see article].
B. Hiring More CBP Agents/Officers
The Memorandum instructs the Commissioner of the United States Customs and Border Protection (CBP) to immediately begin the process of hiring 5,000 additional Border Patrol agents, as well as 500 Air and Marine Agents/Officers. It instructs for a plan to be created to the effect of creating hiring plans.
However, like many other portions of the Memorandum, the ability of the CBP to meet its hiring targets will depend on funding and the number of interested and qualified applicants. The American Immigration Lawyers Association (AILA) notes that the CBP has been unable to meet its current requirement of 21,370 agents.1
C. Identifying and Quantifying Sources of Aid to Mexico
In this section of the Memorandum, Secretary Kelly orders the Under Secretary of Management at DHS to identify all sources of direct or indirect aid or assistance (exempting intelligence activities) to Mexico.
D. Expansion of the 287(g) Program in the Border Region
Under section 287(g) of the INA, the DHS may enter into a written agreement with a state or political subdivision thereof for the purpose of authorizing qualified officers or employees of such state or political subdivision to perform the functions of an immigration officer. Such qualified officers may perform duties in relation to the investigation, apprehension, or detention of aliens in the United States. In 2012, the ICE had declined to renew any existing section 287(g) agreements [link].
In the new Memorandum, Secretary Kelly takes the position that the 287(g) Program “has been a highly successful force multiplier.” He explained that from January 2006 to September of 2015, “the 287(g) Program led to the identification of more than 402,000 removable aliens, primarily through encounters at local jails.”
In this section of the Memorandum, Secretary Kelly directs the Director of the Immigration and Customs Enforcement (ICE) and the Commissioner of CBP to engage with all willing and qualified law enforcement jurisdictions near the southern border for the purpose of entering into section 287(g) agreements. Secretary Kelly further directed the agencies to consider the operational functions and capabilities of any jurisdictions entering into section 287(g) agreements for the purpose of structuring them to create the most effective enforcement models.
Secretary Kelly discussed one possible benefit of such agreements. He noted that “[a]liens who engage in criminal conduct are priorities for arrest and removal and will often be encountered by state and local law enforcement officers during the course of their routine duties.”
The Memorandum provides for a more robust section 287(g) program than existed at any point under the previous administration. Secretary Kelly directed the CBP and ICE in states near the southern border to enter into section 287(g) agreements with willing jurisdictions, and he gave them latitude to structure such agreements to best meet immigration enforcement objections. The Memorandum provides for no specific restrictions on the type of personnel that may be “qualified” or on the lawful enforcement activities in which they may be engaged. It is important to note that no state or jurisdiction can be forced to cooperate in immigration enforcement under a section 287(g) agreement. The parameters of the new section 287(g) agreements remain to be seen.
It is worth noting that despite certain inaccurate and unsubstantiated media reports about a draft Memorandum, there is no plan to call up “100,000 National Guard troops” to participate in deportations of persons here illegally.
E. Commissioning a Comprehensive Study of Border Security
The Memorandum references a provision of the Executive Order which directs the Under Secretary of Management, in consultation with the commissioner of CBP, Joint Task Force (Border), and Commandant of the Coast Guard to commission an immediate and comprehensive study of security on the southern border. The objective of the study will be to create a “border security strategy that will achieve complete operational control of the border.”
F. Border Wall Construction and Funding
Consistent with the Executive Order, Secretary Kelly ordered the CBP, in consultation with appropriate executive departments and agencies to begin planning, design, construction, and maintenance of a wall along the southern border. This includes attendant lighting, technology, as well as patrol and access roads. The goal will be to use the appropriate materials and technology to achieve operational control of the southern border. To this effect, the Under Secretary of Management and the Commissioner of CBP are instructed to identify and allocate all available sources of funding for the project, and to factor the project into budget requests to the United States Congress.
The DHS FAQ at Q2 explains that the CBP will consider the current state of border security, the geographical and topographical aspects of the southern border, and the availability of resources to take operational control of the southern border in its assessment for how to build the border wall. At Q1 and 4, it notes that it has already identified locations near El Paso, Texas, Tucson, Arizona, And El Centro, California, where it will build a wall in areas where fences are no longer effective.
The Memorandum provides for the beginning of the construction of the much-discussed border wall. The purpose of the wall, along with technology and other resources, is to allow the United States to achieve operational control of the southern border.
That being said, the particulars of the border wall have yet to be determined. The ultimate form and fate of the wall will likely depend on how much funding the Trump Administration can secure from Congress for the project. The DHS FAQ explains at Q6 that it has the funding to “begin immediate construction.”
G. Expanding Expedited Removal Pursuant to Section 235(b)(1)(A)(iii)(I) of the INA
The Memorandum provides for the expansion of the use of expedited removal. Expedited removal is an administrative removal procedure where an alien may be detained and removed without a hearing before an immigration judge. Secretary Kelly suggested his intent to apply the section 235 expedited removal provisions to the maximum extent the law provides. Under section 235(b)(1)(A)(iii)(I), this will allow generally the DHS to pursue expedited removal against any alien found anywhere in the United States who is inadmissible under section 212(a)(6)(C) or 212(a)(7) and who cannot prove affirmatively that he or she has been continuously present in the United States for at least two years.
This is arguably the most significant provision of the Memorandum. Please see our full article on this important section of the Memorandum to learn about the new rules in more detail [see article].
H. Implementing the Provisions of Section 235(b)(2)(C) of the INA to Return Aliens to Contiguous Countries
Under section 235(b)(2)(C) of the INA, the DHS may return aliens who arrive on land from a foreign contiguous territory to the territory from which they arrived, pending formal removal proceedings under section 240 of the INA.
Accordingly, Secretary Kelly directs the relevant DHS agencies to return aliens who arrive from a foreign contiguous territory and are placed in section 240 removal proceedings to the foreign contiguous territory from which they arrived, pending such removal proceedings. Secretary Kelly stated that the agencies should seek to enforce section 235(b)(2)(A) “to the extent otherwise [subject to special rules for unaccompanied alien children] consistent with the law and U.S. treaty obligations.” The Secretary instructed the relevant agency directors to allow aliens subject to section 235(b)(2)(A) to appear via video teleconference at their removal proceedings. To this effect, Secretary Kelly instructed the Director of ICE and Commissioner of CBP to consult with the Director of the Executive Office of Immigration Review “to establish a functional, interoperable video conference system to ensure maximum capability to conduct video teleconference removal hearings for those aliens so returned to the contiguous territory.”
If the DHS is able to implement section 235(b)(2)(A), it would have a significant effect on many individuals who crossed illegally from Mexico or Canada. It is important to note, however, that this only applies to those who are placed in section 240 removal proceedings before an immigration judge. However, the Memorandum leaves open many questions as to how this will work in practice. For example, AILA notes that the Memorandum does not explain how such individuals would be detained by Mexico or Canada upon their removal from the United States.2 The DHS FAQ at Q29 explains that it will work with the Mexican government and the Department of State (DOS) to determine how to best implement the guidance. Furthermore, it explains that it will interpret to the guidance consistent with U.S. treaty obligations.
Any individual who is apprehended and may be subject to this new provision should consult immediately with an experienced immigration attorney.
I. Enhancing Asylum Referrals and Credible Fear Determinations Pursuant to Section 235(b)(1) of the INA
An alien who is subject to expedited removal under section 235(b) of the INA may, like any other alien arriving in the United States, apply for asylum. However, an alien subject to expedited removal must be referred to an asylum officer to determine whether he or she has established a credible fear of persecution or torture.
Although Secretary Kelly did not change any rules relating to credible fear determinations, he ordered the Director of the United States Citizenship and Immigration Services (USCIS) to “ensure that asylum officers conduct credible fear interviews in a matter that allows the interview officer to elicit all relevant information from the alien as is necessary to elicit all relevant information from the alien as to make a legally sufficient determination.” Furthermore, the Secretary instructed the Director of USCIS to ensure that credible fear determinations are made in accord with the relevant statutes and precedents.
Secretary Kelly ordered the Director of USCIS to increase the operational capacity of the Fraud Detection and National Security (FDNS) Directorate and strengthen the integration of its operations to support the Field Operations, Refugee, Asylum, and International Operations, and Service Center Operations Directorate. Furthermore, Secretary Kelly ordered the Directors of USCIS and ICE and the Commissioner of CBP to review the fraud detection, deterrence, and prevention measures throughout their respective agencies and provide a report within 90 days regarding fraud vulnerabilities in asylum and benefits adjudication, along with proposed measures to patch those vulnerabilities.
We will discuss this portion of the Memorandum in conjunction with our full article on the new guidelines for expedited removal [see article; subsection A of this article].
J. Allocation of Resources and Personnel to the Southern Border for Detention of Aliens and Adjudication of Claims
In this section, Secretary Kelly takes the position that “[t]he detention of aliens apprehended at the border is critical to the effective enforcement of the immigration laws.” Furthermore, Secretary Kelly explained that the screening of credible fear claims by USCIS and asylum claims by EOIR at detention facilities near the point of apprehension by the border “will facilitate an expedited resolution of those claims and result in lower detention and transportation costs.
In accordance with these priorities, Secretary Kelly directed the Director of ICE and the Commissioner of CBP to take all necessary action and allocate all available resources to expand detention capabilities and capacities at or near the U.S. border with Mexico “to the greatest extent practicable.” Secretary Kelly directed the CBP to focus on the expansion of “short-term detention” (defined as 72 hours or less under 6 U.S.C. 211(m)). The Secretary instructed the ICE to focus on the expansion of all other detention capabilities. Furthermore, Secretary Kelly instructed the CBP and ICE to explore options for joint temporary structures that meet appropriate standards for detention. The DHS FAQ at Q11 explains that the ICE has already increased its detention capacity by approximately 1,100 beds since the issuance of the EO.
Secretary Kelly directed the Director of USCIS to increase the number of asylum officers and FDNS officers assigned to detention facilities located at or near the U.S. border with Mexico “to the greatest extent practicable” to adjudicate credible and reasonable fear claims and to counter asylum-related fraud.
We will discuss this portion of the Memorandum in conjunction with our full article on the new guidelines for expedited removal [see article; subsection A of this article].
K. Proper Use of Parole Authority Pursuant to Section 212(d)(5) of the INA
In this section of the Memorandum, Secretary Kelly notes that the statute authorizing parole of certain aliens, section 212(d)(5) of the INA, “authorizes parole in individual cases only where, after careful consideration of the circumstances, it is necessary because of demonstrated urgent humanitarian reasons or significant public benefit.” Secretary Kelly stated that in his judgment, “such authority should be exercised sparingly.”
Secretary Kelly stated that the practice of granting parole to aliens in pre-designated categories “in order to create immigration programs not established by Congress” has created border security problems and undermined the integrity of the immigration laws, thus creating an incentive for illegal immigration.
Secretary Kelly suggested that new regulations will be issued clarifying the appropriate use of parole power. Secretary Kelly ordered the Directors of USCIS and ICE and the Commissioner of CBP to ensure that all immigration officers responsible for making parole determinations are provided with appropriate written policy guidance and training regarding the exercise of parole (including advance parole) pending the publication of new final parole regulations. The Secretary issued this guidance to ensure that “such employees are familiar with the proper exercise of parole under section 212(d)(5) of the INA and exercise such parole authority only on a case-by-case basis, consistent with the law and written policy guidance.”
Notably, Secretary Kelly stated that pending further review and evaluation of the implementation of changes under the Executive Order, directives for the parole of certain arriving aliens found to have a credible fear of persecution or torture “shall remain in full force and effect.” Specifically, the Secretary references “ICE Policy No. 11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture” (Dec. 8, 2009) [PDF version]. Secretary Kelly states that this directive “shall be implemented in a matter consistent with its plain language.” Please see our full article to learn more [see article].
The portion of the Memorandum relating to parole has the potential to be one of the most significant changes to immigration policy going forward. Secretary Kelly's skepticism toward parole for pre-designated categories of aliens may imperil many preexisting parole programs. Furthermore, part A of the Memorandum significantly restricts parole for aliens subject to expedited removal. However, pending the publication of further guidance and new final regulations, it is impossible to say how sweeping the changes to parole will end up being.
Those who may have been counting on an existing parole program or those who are considering seeking advance parole should consult with an experienced immigration attorney for up-to-date guidance. We will update the site when the DHS provides further clarifications regarding changes to parole.
L. Proper Processing and Treatment of Unaccompanied Alien Minors Encountered at the Border
Under 8 U.S.C. 1232 and 6 U.S.C. 279, unaccompanied alien minors encountered at the border are afforded special protections to ensure that they are properly processed and receive appropriate care and placement. An unaccompanied alien child is defined in 6 U.S.C. 279(g)(2).
Secretary Kelly criticized the policies of the previous administration to continue treating unaccompanied alien children as unaccompanied alien children after being placed in the care of one or more parents residing illegally in the United States. Secretary Kelly argued that such policies were contrary to the relevant statutes. Accordingly, he ordered the creation of new policies relating to the processing of unaccompanied alien children and to ensure that an alien initially designated as such continues to meet the definition throughout proceedings.
This section presents a significant change to the processing of unaccompanied alien children. Please see our full article to learn about it in more detail [see article].
M. Accountability Measures to Protect Alien Children from Exploitation and Prevent Abuses of Our Immigration Laws
In this section, Secretary Kelly ordered the Director of ICE and the Commissioner of CBP to ensure the proper enforcement of the immigration laws against “any individual who — directly or indirectly — facilitates the illegal smuggling or trafficking of an alien child into the United States.” Such enforcement may come in the form of placing the individual into removal proceedings (if he or she is removable) or referring the individual for criminal prosecution. Regarding the smuggling of a child by a family member, Secretary Kelly stated that “[r]egardless of the desires for family reunification … the smuggling or trafficking of alien children is intolerable.”
We will discuss this section in more detail in our full article on the Memorandum's language on unaccompanied alien children [see article; subsection L].
N. Prioritizing Criminal Prosecutions for Immigration Offenses Committed at the Border
Secretary Kelly ordered the Directors of the Joint Task Forces-West, -East, and -Investigations, as well as the ICE-led Border Enforcement Security Task Forces (BESTs) to plan and implement enhanced counter-network operations directed at disrupting transnational criminal organizations near the U.S.-Mexico border, particularly those involved in human smuggling. This work will be supported by various DHS agencies. Furthermore, Secretary Kelly stated that the task forces should include participants from other federal, state, and local agencies. Secretary Kelly stated that the task forces should also focus on individuals and organizations that undermine border security or the integrity of the immigration system, “including offenses related to alien smuggling or trafficking, drug trafficking, illegal entry and reentry, visa fraud, identity theft, unlawful possession or use of official documents, and acts of violence committed against persons or property at or near the border.”
O. Public Reporting of Border Apprehensions Data
Secretary Kelly ordered “the Commissioner of CBP and the Director of ICE to develop a standardized method for public reporting of statistical data regarding aliens apprehended at or near the border for violating immigration law.” Secretary Kelly instructed them to ensure that the following information is made public going forward:
The number of convicted criminals and the nature of their offenses;
The prevalence of gang members and prior immigration violators;
The custody status of aliens and, if released, the reason for release and location of that release; and
The number of aliens ordered removed and those aliens physically removed.
P. No Private Right of Action
The Memorandum is intended solely for DHS policy guidance, and does not create any private right of action.
Conclusion
The Memorandum contains provisions that will affect many aliens in the United States directly or indirectly. Some of the changes will be immediate while the extent of other changes remains unclear pending further guidance. Please see our main article on the February 20 Memoranda for a full table of contents of all of our articles on the subjects [see article].
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