Overview of the Kelly Interior Enforcement Memorandum (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 in implementing President Donald Trump's January 25, 2016 Executive Order (EO) 13768 titled “Enhancing Public Safety in the Interior of the United States” [82 FR 8799]. The Memorandum addresses new immigration enforcement priorities and other issues related to enforcement within the interior of the United States. To supplement our understanding of the Interior Enforcement Memo, we will also refer to a DHS FAQ published on February 21, 2017, titled “Q&A: DHS Implementation of the Executive Order on Enhancing Public Safety in the Interior of the United States” [PDF version].

Kelly Interior Enforcement Memorandum (Trump EO)

In this article, we will assess each section of the Interior Enforcement Memo. However, we have a separate article dedicated to the Interior Enforcement Memo's guidance on enforcement priorities [see article].

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].

Overview of the Memorandum

The Memorandum encompasses ten sections in total. In this article, we will examine each section in detail. Links will be provided to our article on the new enforcement priorities where appropriate.

Introductory Section and Note on DACA

In the introductory section to the Memorandum, Secretary Kelly made explicit that the guidance does not apply to the Deferred Action for Childhood Arrivals (DACA) program or the memo that instituted Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). This means that DACA remains in effect, including the parts of DACA that were modified by the DAPA Memo and not enjoined. Please see our full articles on DACA [see article] and the litigation on the DAPA Memo [see article] to learn more.

However, Secretary Kelly rescinded all other memoranda and agency guidance that are contrary to the guidance contained in both the Interior Enforcement Memo and the Border Memo. Notably, he specified the Memorandum outlining President Obama's civil enforcement policies was no longer in effect [see article on the old rules]. Furthermore, Secretary Kelly also rescinded the Obama Administration Memorandum that ended the Secure Communities program. We will discuss these issues in more detail in our full article on the new enforcement priorities of the Trump Administration.

A. The Department's Enforcement Priorities

The first, and most important, section of the Memorandum details the new immigration enforcement priorities. These priorities replace the civil enforcement priorities previously set forth by the Obama Administration. The new enforcement priorities are significantly broader and give officials of the United States Immigration and Customs Enforcement (ICE) far more latitude to make arrests of those who are in the United States illegally.

We discuss the new enforcement priorities in detail in our full article [see article].

B. Strengthening Programs to Facilitate the Efficient and Faithful Execution of the Immigration Laws of the United States

Section B of the Interior Enforcement Memo builds off Section A. Accordingly, we will reserve discussion of parts of this section for the full article on the enforcement priorities.

Secretary Kelly took the position that the interests of the United States are best served by the DHS making use of the statutory authorities to detain and remove aliens “to the greatest extent practicable.” This new policy is reflected in the new enforcement priorities and in the other guidance put forth in this Memorandum and in the Border Memo.

In accordance with the guidance, Secretary Kelly ended the Obama Administration enforcement priorities and restored the “Secure Communities Program.” The Secure Communities program focused on deputizing state and local law enforcement officials to assist in ensuring that aliens who have broken criminal laws and who are removable as a result (or were removable to begin with) are turned over to immigration enforcement by state and local law enforcement.

In accord with the changes, the DHS shall eliminate the existing Forms I-247D, I-247N, and I-247X, all of which relate to immigration detainers, and replace them with a new form designed to more effectively communicate with state and local law enforcement agencies. However, until the new form is published, the old forms may continue to be used where appropriate.

Secretary Kelly then discusses section 287(g) of the Immigration and Nationality Act. Section 287(g) allows the DHS to enter into agreements with state and local law enforcement to enable qualified state and local law enforcement officers to assist in the enforcement of the immigration laws under the supervision of the DHS.

The use of section 287(g) agreements was curtailed in the latter years of the Obama Administration. Secretary Kelly explained that there are currently 32 law enforcement agencies in 16 states participating in the section 287(g) Program. Secretary Kelly noted that the 287(g) Program used to be much larger in scope.

In the Interior Enforcement Memo, Secretary Kelly ordered the Director of ICE and the Commissioner of the United States Customs and Border Protection (CBP) to, “to the greatest extent practicable,” expand the 287(g) Program to include all qualified law enforcement agencies that request to participate and meet the 287(g) Program requirements. Secretary Kelly notes that he discusses this in greater detail in the Border Memo. To learn more about the proposed expansion of the 287(g) Program, please refer to the relevant section of our article on the Border Memo [see article].

In this section, Secretary Kelly also lists a variety of measures designed to assist in enforcing the removal provisions of INA to the extent that he has directed in the two February 20 Memoranda. These include the reinstatement of Secure Communities, and the revision of the forms used by the DHS to issue detainers, and the expansion of the 287(g) Program. The extent to which the DHS is able to cooperate with state and local law enforcement will likely be central to the degree of its success in implementing the policies found in both the Kelly Memoranda and the associated EOs issued by President Trump.

C. Exercise of Prosecutorial Discretion

Secretary Kelly makes clear that immigration officers “have full authority to arrest or apprehend an alien” when they have probable cause to believe the alien is in violation of the immigration laws. Furthermore, the DHS has full authority to initiate removal proceedings against any alien who is subject to any removal provision of the INA, and to refer appropriate cases for criminal prosecution. To this effect, Secretary Kelly directs DHS agencies to refer to the new enforcement priorities in section A of the Memorandum.

However, Secretary Kelly also makes clear that the Interior Enforcement Memo does not strip DHS officers of their authority to exercise prosecutorial discretion. He explains that determinations of prosecutorial discretion may be made “on a case-by-case basis in consultation with the head of the field office component, where appropriate, of the CBP, ICE, or [the United States Citizenship and Immigration Services (USCIS)] that initiated or will initiate the enforcement action, regardless of which entity files any applicable charging documents: CBP Chief Patrol Agent, CBP Director of Field Operations, ICE Field Office Director, ICE Special Agent-in-Charge, or the USCIS Field Office Director, Asylum Office Director or Service Center Director.”

Secretary Kelly instructs DHS officers to not exercise prosecutorial discretion in a manner “that excludes a specified class or category of aliens from enforcement of the immigration laws” except as provided in the Interior Enforcement Memo. This means that prosecutorial discretion may not be exercised as a matter of course to prevent the immigration laws from being implemented against a class of aliens other than DACA recipients (including the provisions of DAPA that are not subject to the federal injunction). Secretary Kelly directs the General Counsel to issue guidance consistent with the Interior Enforcement Memo on prosecutorial discretion to all attorneys involved in immigration proceedings.

In this section of the Interior Enforcement Memo, Secretary Kelly narrows the permitted use of prosecutorial discretion. First, he prevents it from being used to exempt classes of aliens from immigration enforcement. This provision is consistent with the objectives put forth in the Border Memo's restrictions on the use of immigration parole. Second, Secretary Kelly limits the number officials in the DHS who may approve a decision, on a case-by-case basis, to exercise prosecutorial discretion. Finally, he provides for the promulgation of new guidance on prosecutorial discretion. This represents a substantial shift from the policies of the Obama Administration, which used prosecutorial discretion liberally in its civil enforcement priorities.

D. Establishing the Victims of Immigration Crime (VOICE) Office

Secretary Kelly directs the creation of the Victims of Immigration Crime Enforcement (VOICE) Office under the jurisdiction of the ICE. The VOICE Office will allow known victims of crimes committed by removable aliens to be provided with information, to the extent permitted by law, about the offender. Such information will include the offender's immigration and custody status. The VOICE Office will also work to provide victims with answers about immigration enforcement efforts related to their cases.

Secretary Kelly directs the Director of ICE to immediately reallocate “any and all resources that are currently used to advocate on behalf of illegal aliens (except as necessary to comply with a judicial order) to the new VOICE Office.” Furthermore, Secretary Kelly directs the Director of ICE to terminate the provision of those outreach or advocacy services to illegal aliens.

Although this is one of the more talked-about provisions of the Interior Enforcement Memo, it does not have any effect on immigration enforcement. The VOICE Office's objective, as laid out in the Interior Enforcement Memo, is to provide crime victims with information about the perpetrator when the perpetrator is a removable alien. It is important to note that the VOICE Office will only be able to provide information that it is able to provide under law, and may not provide information that it is barred by statute from providing or that is otherwise classified. The Memo also instructs the ICE to reallocate resources that were previously used for outreach and advocacy services to aliens who are in the United States illegally.

Q6 of the DHS Q&A explains that the DHS is currently identifying resources and realigning existing personnel to establish the VOICE Office.

E. Hiring Additional ICE Officers and Agents

Secretary Kelly orders the Director of ICE to take action to expeditiously hire 10,000 new ICE agents and officers. The hires must be made “while ensuring consistency in training and standards.” The Secretary instructs “the Human Capital leadership in CBP and ICE, in coordination with the Under Secretary for Management and the Chief Human Capital Officer,” to develop hiring plans to meet the new objectives. This hiring plan parallels a plan in the Border Memo to hire 5,000 new CBP officers.

It is important to note that the ICE, like the CBP, is currently short of its smaller hiring targets that predate the Interior Enforcement Memo. Whether it can meet the new hiring targets will depend on both funding and the plans promulgated to meet the targets.

F. Establishment of Programs to Collect Authorized Civil Fines and Penalties

Secretary Kelly directs the Director of ICE, the Commissioner of CBP, and the Director of USCIS to “issue guidance and promulgate regulations, where required by law, to ensure the assessment and collections of all fines and penalties” which the DHS is authorized by law to assess to and collect from aliens and from those who facilitate their unlawful presence in the United States.

Once the DHS releases new guidance on the collections of fines and penalties, we will update the website with such information.

G. Aligning the Department's Privacy Policies With the Law

Secretary Kelly states that the DHS will no longer afford Privacy Act rights and protections to aliens who are neither U.S. citizens [or nationals] nor lawful permanent residents.” Accordingly, Secretary Kelly directs the DHS Privacy Office to rescind the DHS's Privacy Policy Guidance memorandum, dated January 7, 2009, which extended Privacy Act protections to aliens who were not lawful permanent residents. Secretary Kelly ordered the DHS Privacy Office, with the assistance of the Office of General Counsel, to develop new guidelines with respect to personal information that the DHS maintains in its record systems.

H. Collecting and Reporting Data on Alien Apprehensions and Releases

Secretary Kelly directs the ICE to make reforms to the collection and reporting of data regarding alien apprehensions. One purpose of this directive is to assist in the development of ICE performance metrics. A second purpose is to “provide transparency in the immigration enforcement mission.” With respect to the second purpose, Secretary Kelly directs the Director of ICE to “develop a standardized method of reporting statistical data regarding aliens apprehended by ICE and, at the earliest practicable time, provide monthly reports of such data to the public without charge.”

For public reports, Secretary Kelly directs the Director of ICE to ensure that the reporting method uses terminology and is in a format that is “easily understandable to the public” and in “a medium that can be readily accessed.” Secretary Kelly instructs the Director of ICE to, at a minimum, include the following information in addition to the statistical information that is already reported regarding apprehended aliens:

  • Country of citizenship;
  • Convicted criminals and the nature of their offenses;
  • Gang membership;
  • Prior immigration violators;
  • Custody status of aliens;
  • If released, the reason for release and location of release;
  • Aliens ordered removed; and
  • Aliens physically removed or returned.

The first reporting directive covers alien apprehensions by the ICE. The new reports promise to provide the public with more detailed information regarding the ICE's enforcement activities. These may end up being valuable resources for assessing the effectiveness — for better or for worse — of the new enforcement policies.

Additionally, Secretary Kelly directs the ICE to develop and provide a free weekly report to the public that includes non-Federal jurisdictions (i.e., state and local agencies) that release aliens from their custody notwithstanding detainer or similar requests issued by the ICE to such jurisdictions. The reports must include, in addition to all other relevant information:

  • The name of the jurisdiction;
  • The citizenship and immigration status of the alien;
  • The arrest, charge, or conviction for which each alien was in custody of that jurisdiction;
  • The date on which the ICE detainer or similar request for custody was served on the jurisdiction by ICE;
  • The date on which the detainer or similar request was made by the ICE to the jurisdiction;
  • The date of the alien's release from custody of that jurisdiction and the reason for release;
  • An explanation concerning why the detainer or similar request for custody was not honored; and
  • All arrests, charges, or convictions occurring after the alien's release from the custody of that jurisdiction.

The second reporting directive relates to “sanctuary cities.” President Trump's EO directs the DHS to report when non-federal jurisdictions do not comply with detainer or similar requests from the DHS. The new reporting efforts will be a part of the effort to highlight such non-complying jurisdictions.

I. No Private Right of Action

Secretary Kelly makes clear that the Interior Enforcement Memo is a document providing only internal DHS policy guidance, and that it may be modified, rescinded, or superseded at any time without notice. It does not create any right or benefit enforceable by any party in any administrative or civil manner.

Conclusion

The Interior Enforcement Memo makes significant changes to immigration enforcement, most notably by significantly broadening the Obama-era enforcement priorities. In this article, we examined its other provisions, specifically those related to enhancing the DHS's capability to broaden immigration enforcement and to be more transparent in its reporting to the public. It remains to be seen how the DHS ultimately implements the guidance of both this Memorandum and the Border Memo. Individuals who may be affected are urged to consult with an experienced immigration attorney.

Please make sure to see our full article on the new enforcement priorities to learn more.