Key points of the guidance from DHS on the Jan. 25 executive order on border security
The following is a simple summary of the main points of the enforcement guidance issued by the Department of Homeland Security Feb. 20 and DHS fact sheets of Feb. 21. More detailed legal analysis will follow.
- No category of removable aliens will be exempt from enforcement (although certain categories will be prioritized, such as those who have committed crimes).
- The “sensitive locations” memo is still in effect. That means, it is DHS policy not to carry out enforcement actions at schools, hospitals, places of worship and other “sensitive locations.”
- The memorandum does not rescind DACA, although DACA recipients are not necessarily protected from enforcement actions.
- Mandatory detention for noncitizens apprehended along the border will be policy, with extremely limited exceptions. The use of alternatives to detention (such as ankle monitors) will be available on an extremely limited, case-by-case basis. In situations where there is not space in detention centers to detain all those apprehended, people who are removable on criminal grounds, fraud or on the basis of national security will be prioritized to be detained.
- Directs the immediate hiring of 5,000 Border Patrol agents and 500 air and marine agents, funding permitting. The memorandum calls for maintaining consistency in hiring standards and training.
- Directs the directors of Immigration and Customs Enforcement, or ICE, and Customs and Border Protection to engage with local law enforcement to enter into 287(g) agreements, in which local police voluntarily assist federal immigration officers with immigration enforcement. The 287(g) applications from local law enforcement will be reviewed at an expedited pace.
- Noncitizens detained “soon after crossing the border” (defined as within two years) will be immediately removed, with exceptions for unaccompanied children, asylum seekers, people who have been physically present in the U.S. continuously for at least two years, and others as required by U.S. law. Calls for the creation of new regulations to expand categories of people who can be immediately removed.
- Asylum interviews will be conducted in such a way that “allows the interviewing offices to elicit all relevant information from the alien as is necessary to make a legally sufficient determination.” There will be an emphasis on preventing fraud in the asylum system.
- A new interpretation of the definition of unaccompanied children will be written. In some cases, unaccompanied children will be returned to the country from which they came. Parents and guardians of unaccompanied minors who reside in the U.S. who paid to have children smuggled to the U.S. may be prosecuted. Family reunification is not an excuse.
- Advance parole and humanitarian parole are to be used extremely sparingly.
- People apprehended near the border who are not likely to reenter the U.S. are to be returned to the country from which they came.
- Calls for resources to be allocated to the border for increased detention and adjudication. The Q & A says ICE has already added 1,100 beds for detention.
- Calls for implementing video teleconferencing for adjudications in detention centers where physical space is limited for asylum and other hearing officers.
- Calls for numerous studies and establishing infrastructure to track and analyze fraud in the asylum system, U.S. federal aid to Mexico, public reporting of apprehensions near the border and taking steps to begin building the wall. DHS will begin building the wall along the border in the El Paso, Texas; Tucson, Arizona; and El Centro, California sectors.