New DHS Immigration Enforcement Criteria; Future of Travel/Visa Ban

After a short lull in immigration policy action, things are changing again.  Last week the Trump Administration informed the 9th Circuit Court of Appeals that it would issue a new Executive Order (EO) on the travel/visa ban this week which will replace the initial EO and moot the 9th Circuit’s national temporary restraining order. The new EO is expected late this week and has not been released in draft form.  The Trump Administration has offered some information about the new EO as follows: it will not take effect immediately upon issuance, to allow for preparations and avoid the chaos that ensued when the initial EO took effect immediately; it will apply to the same seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen); it will clarify how it applies to dual citizens of a listed country and another country that isn’t on the list; it will be clear that lawful permanent residents of the US are not affected by the EO; it may allow some refugees from Syria. These points address the most obvious legal and operational deficiencies of the initial EO.

Meanwhile late last week the Department of Homeland Security (DHS) issued detailed guidance regarding immigration enforcement for its constituent divisions, US Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), US Citizenship and Immigration Services (USCIS) and US Border Patrol.  DHS Secretary Kelly issued two internal DHS memoranda which then were formally adopted on February 20 after approval by the White House Counsel. These memoranda cite legal authority and prior DHS policy and make major changes to immigration enforcement priorities and practices.  Here are a few highlights of the new enforcement policy proposed by DHS:

  • DACA and DAPA specifically are not affected by this new guidance, but in a footnote DHS says DAPA will be revisited in future guidance.  The final version specifically references DACA and DAPA as the exceptions to this new enforcement policy under which DHS “will no longer exempt classes or categories of removable aliens from potential enforcement” (other than DACA and DAPA).
  • DHS will no longer focus on criminal convictions as a basis for removal, but will also prioritize removing aliens who have been charged with a crime even if the charges haven’t been resolved or have admitted criminal behavior, or who have engaged in fraud or willful misrepresentation to any government agency or abused any public benefit program. Read More.
Post by Leigh Cole

Post by Leigh Cole