Sources reveal that DHS is soon to issue a memorandum that changes the way asylum seekers and immigration detainees are processed at the border.
In response to President Trump’s promise to secure the border, Department of Homeland Security is soon to publicize a memorandum on new procedures for border security. The memo is called Implementing President’s Border Security and Immigration Enforcement Improvement Policies. CNN News have obtained a copy of the unpublished memorandum and it can be found by clicking on the link below.
From a glance, this memorandum does not drastically change much of the existing procedure but rather clarifies and tightens procedures that are currently implemented more loosely. This memorandum will address the following areas of enforcement:
- Expedited removal
- Asylum review process and bond for applicants
- Expansion of Obama’s criminal immigrant apprehension program
- Unaccompanied Minor
- Deputization of local law enforcement under INA 287(g)
This guidance is not final and details can still change before it is formally published by Department of Homeland Security.
#1: Expedited Removal of aliens will be expanded to include any removable aliens who cannot prove physical presence in the US for more than 2 years.
The Border Security Guidance expands on the use of Expedited Removal, which allows the speedy removal of undocumented immigrants with limited court proceeding. Normally, an undocumented immigrant who has been apprehended by ICE must be served with a Notice to Appear (NTA) and be processed by immigration court. The new Guidance seeks to remove quickly the undocumented immigrants who are considered recent arrivals. Previously, ICE and CBP use expedited removal only for immigrants caught within 100 miles of the border within 14 days of entering the US. If the expansion of the Expedited Removal policy were to take place, undocumented immigrants are advised to bring with them evidence of their physical presence in the United States for the last two years. When read in whole, the new Guidance basically allows ICE officers a wide discretion to
#2: Asylum seekers at the border will be subjected to stricter Credible Fear Interview and bond procedure.
The Border Security Guidance will require immigration officer to utilize existing knowledge in determining if an asylum applicant possess credible fear of returning to home country due to persecution. All asylum seekers at the border must first pass a Credible Fear Interview before being allowed to proceed with their asylum application in immigration court or being released on bond. Before the Guidance, the immigration officer conducting the credible fear generally will not use his or her own prejudice in making the determination of whether an asylum applicant possess the requisite credible fear. Under the new Guidance, the seemingly neutral language allows the officer to utilize existing knowledge to make the determination. Because these existing facts do not have to be corroborated, this could lead to the officer making the decision based on personal prejudice or unsubstantiated rumor about the asylum seeker’s home country.
The new Guidance also requires the ICE officer to find affirmatively the asylum applicant’s identity and determination that the applicant will not pose any risk to national security before a bond can be set and the immigrant can be released into the United States.
#3: DACA is a glaring omission from the new Guidance memorandum but it does not necessarily mean that the program will survive enhanced enforcement.
It has been widely speculated that President Trump will eliminate the DACA program, but it would not serve him well politically to do so before Congress enacts similar protection. President Trump has also expressed his intent to treat DACA recipients humanely. However, in the last week, the public has seen the arrest and detention of DACA recipients by ICE. The contention there is whether the DACA recipient confessed to gang affiliation which warrants his detention. His attorney has maintained that his client’s confession was fabricated, and ICE maintains that the DACA recipient has confessed to being affiliated with gang member. The DACA recipient was detained because he was present in a house where criminal immigrants were arrested.
The fact that DACA was not mentioned in the new Guidance might be a signal to the program’s temporary survival under an array of restrictive immigration policies by President Trump. However, the Border Security Guidance Memorandum explicitly states that the Department of Homeland Security will no longer exempt classes or categories of removable clients from potential enforcement. Because DACA recipients constitute a class of immigrants who are exempt from deportation enforcement, it can be argued that this memo effectively ended DACA or at least signals the policy of the future that DACA recipients can be sent to removal proceedings at the discretion of the ICE officer. We expect to see a lot more arrests of DACA recipients who get caught in the raids because they were at the wrong place at the wrong time.
#4: Enforcement of immigrant arrest and detention will be considerably expanded to include immigrants who are suspected of committing a crime.
One major departure of the new enforcement policy under Trump’s administration that went unreported by most media is that ICE officers will detain undocumented immigrants who are only suspected of committing a crime. In the recent arrest of a DACA recipient, ICE claimed that he admitted to gang affiliation. Although the official stance of the White House is to target only aliens with criminal conviction or background. The arrest of Daniel the DACA recipient unavoidably suggest that ICE will also target non-criminal immigrants whom they merely suspect of having a criminal connection. Without a doubt, this give ICE the discretion it needs to detain any undocumented immigrants, including those who are approved for protection under DACA. We recommend DACA recipient clients to move out of households where ICE raids are likely to happen and to remain silent if they are arrested by ICE.
#5: DHS will divert resources dedicated to advocating for undocumented immigrants to victims of crimes committed by undocumented aliens.
The new Guidance also seeks to divert DHS resources that are currently dedicated to advocating for undocumented immigrants to advocate for victims of crimes committed by undocumented immigrants. This means that Department of Homeland Security will eliminate programs that may be perceived to help undocumented immigrants.