Leaked DHS Memo Implementing the Executive Order on Interior Enforcement (or Is Prosecutorial Discretion Dead?)

On February 17, a memorandum signed by DHS Secretary John Kelly was leaked and seeks to implement the Executive Order entitled “Enhancing the Public Safety of the United States”. Below are brief highlights of this memorandum- the contents could change (comments in italics)— this summary should not be a substitute for legal advice or suggest that the underlying Executive Order is lawful or feasible.

• The memorandum rescinds all “existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal” but exempts the 2012 memorandum on Deferred Action for Childhood Arrivals (DACA) and the 2014 memorandum pertaining to DACA + and Deferred Action for Parents of Americans or Permanent Residents (DAPA) (prosecutorial programs signed by former President Barack Obama)

*For a summary of these programs, see: https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2605164

• The Department’s Enforcement Priorities: “The Department no longer will exempt classes or categories of removable aliens from potential enforcement.” The memo directs personnel to prioritize for removal those noncitizens described in sections in the statute pertaining to sections 212(a)(2), (a)(3), and (A)(6)(c), 235(b) and (c), and 237(a)(2) and (4). In addition, the following noncitizens should be prioritized:

o Convicted of any criminal offense
o Have been charged with any criminal offense that has not been resolved
o Have committed acts which constitute a chargeable criminal offense
o Have engaged in fraud of willful misrepresentation in connection with any official matter
o Have abused any program related to receipt of public benefits
o Are subject to a final order of removal but have not complied with legal obligation to depart the U.S.
o In the judgement of an immigration officer, otherwise pose a risk to public safety or national security

• Strengthening Programs to Facilitate the Efficient and Faithful Executive of the Immigration Laws of the United States

o “Criminal” aliens are a priority for removal
o The Priority Enforcement Program is terminated and Secure Communities is restored
o ICE will expand the Criminal Alien Program in any willing jurisdiction of the United States
o Removal proceedings (court proceedings triggered once DHS files a charging document against a noncitizen) shall be initiated against noncitizens held in federal, state and local jails under the Institutional
o “Administrative removal” under 238(b) (a provision of law that enables non-green card holders with certain criminal convictions to be removed by Immigration Customs Enforcement or ICE without a hearing before an immigration judge) should be used in all eligible cases

*For a detailed description about 238(b) and the role of discretion see: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2486821

o DHS should expand the 287(g) Program (voluntary MOUs between the government and state and local law enforcement agencies to deputize the latter to enforce immigration laws)

• Exercise of Prosecutorial Discretion

o DHS personnel should enforce the immigration laws against any removable noncitizen encountered during enforcement, including when there is probable cause to believe a person is in violation of the immigration laws.
o DHS should initiate removal proceedings against any person subject to removal under the INA and referral to relevant cases for prosecution

*This suggests that any noncitizen subject to removal is considered to be a priority for enforcement; this does not align with the premise of prosecutorial discretion which, when exercised favorably, pertains to the decision by DHS to not enforce the law against a person because he or she is deemed to be a “low priority”. For a comprehensive account and history of prosecutorial discretion in immigration law, see www.beyonddeportation.com

o DHS should exercise prosecutorial discretion on a “case-by-case” basis in consultation with the head of the field office component, where appropriate, (USCIS, ICE or CBP) that have or will initiate an enforcement action “regardless of which entity actually files any applicable charging documents”

*This suggests that the initial enforcement decision, perhaps by a CBP officer should have greater authority than say the ICE attorney who files a charging document.

o DHS should not exercise prosecutorial discretion “in a manner that exempts or exclude a specified class or category of aliens from enforcement of the immigration laws.” The memorandum directs the General Counsel to issue related guidance.

• Establishing the Victims of Immigration Crime Engagement (VOICE Office)

o DHS creates a Victims of Immigration Crime Engagement) Office within ICE and directs ICE to reallocate any resources used to “advocate on behalf of illegal aliens” to this office.

• Hiring Additional ICE Offices and Agents

o The Director of ICE should take the steps necessary to hire 10,000 agents and officers and additional staff.

• Establishment of Programs to Collect Authorized Civil Fines and Penalties

o Various DHS heads should issue guidance and regulations to ensure the collection of fines and penalties authorized by law to collect from noncitizens and “those who facilitate their unlawful presence in the United States”.

• Aligning the Department Privacy Policies with the Law

• Collecting and Reporting Data on Alien Apprehensions and Releases

o The ICE Director should develop a method for reporting statistics about noncitizen apprehended by ICE which includes uniform terminology, accessibility and availability to the public without charge.

• No Private Right of Action:

o The memorandum is only internal DHS guidance and does not create any right or benefit.