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New Department of Homeland Security Memos Set Immigration Enforcement Priorities

Two memorandums from the Department of Homeland Security implementing President Donald Trump’s Executive Orders on “Enhancing Public Safety in the Interior of the United States” and “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies” establish broad enforcement priorities for the removal of individuals from the U.S. Issued by DHS Secretary John Kelly on February 20, 2017, the memos expressly overrule Obama Administration memos and guidelines prioritizing the removal of criminal aliens.

In addition, the Kelly memos state that the Deferred Action for Childhood Arrivals (DACA) program remains in effect, and that the program for certain parents of U.S. citizens or permanent residents (DAPA), which has never been implemented, will be “addressed in future guidance.”

According to the new guidelines, DHS will prioritize removal of aliens who are convicted of any criminal offense, have been charged for an unresolved criminal offense, or have committed acts constituting a chargeable offense. Significantly, because commission of any chargeable offense is now within DHS’s enforcement priorities, otherwise undocumented individuals who provided a false Social Security number or false identity information to an employer as part of the I-9 employment eligibility verification process may expect to be targeted for removal.

To deal with the enforcement expansion, DHS intends to hire 10,000 new Immigration and Customs Enforcement officers and agents, and 5,000 additional Customs and Border Protection agents. DHS also intends to acquire additional detention space for aliens awaiting removal. Further, DHS will look to enter into agreements (under Section 287(g) of the Immigration and Naturalization Act) authorizing state or local enforcement personnel to aid in enforcing immigration laws.

Other highlights of the new enforcement priorities include:

  • Expanding use of expedited removal. Expedited removal does not allow for a hearing before an immigration judge and has been used for aliens apprehended at or near the border and individuals apprehend within 14 days and 100 miles of the border;

  • Prosecuting parents who directly or indirectly facilitate smuggling of unaccompanied minor children to the U.S.;

  • Ending “Catch and Release,” which allowed inadmissible aliens to enter the U.S. while awaiting adjudication; and

  • Requiring that most aliens be detained while awaiting adjudication of their cases.

Implementation of these priority changes may not be immediate. The hiring of an additional 10,000 ICE officers and 5,000 CBP officers will require significant budget allocations. Expanding expedited removal will require notice and comment rulemaking. Moreover, these new priorities do not account for the ongoing problem of a severely overburdened immigration court system. In 2004, there were 168,000 cases pending. Currently, there are more than 500,000 cases pending, with non-detained docket cases not heard for two-to-five years.

Jackson Lewis P.C. © 2019

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Michael H. Neifach, Jackson Lewis, Employment visa Lawyer, border security matters attorney
Principal

Michael Neifach is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is a recognized leader on immigration, visa and border security matters, and he is Co-Leader of the firm's Immigration practice group.

Mr. Neifach has held senior positions at the White House Homeland Security Council, U.S. Department of Homeland Security, and U.S. Immigration and Customs Enforcement (ICE). He served as General Counsel at ICE from July 2007 through January 2009. Following his government service, Mr. Neifach oversaw...

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Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National Verification Committee, which liaises with USCIS, ICE and OCAHO on I-9, E-verify and related worksite issues. Ms. Peck recently served on the AILA National USCIS Benefits Committee, the Interagency Committee, the Annual Conference Committee, previously chaired the AILA FOIA Liaison Committee, the AILA Comprehensive Reform Committee (2010-2011) and is a founding member of the Global Migration Action Group (2009 to present). She served as Chair of the AILA National Executive Office for Immigration Review (EOIR) liaison committee (2008-2010). Ms. Peck also served as Chair of the Strategic Planning Committee for AILA (2008-2009) and served on the Spring Conference committee (2008-2010). She was chosen as the editor of the AILA Midyear Conference materials in 2010, and past Chair of the Immigration and Customs Enforcement (ICE) liaison committee (2004-2006). She is past Chair of the AILA Iowa-Nebraska chapter (2001-2003), and previously served as its treasurer (1999-2000).

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