TRUMP ADMINISTRATION-PRIORITIES OF REMOVAL (Who May Stay and Who May Go)
On January 20, 2017, the Secretary of the Department of Homeland Security (DHS), John Kelly, issued a Memorandum titled “Enforcement of the Immigration Laws to Serve the National Interest” (“Interior Enforcement Memo”). This Interior enforcement memo is also related to another DHS Memorandum published relating to border security titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies”.
Secretary Kelly rescinded all other (DACA being the exception) “existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws.” Secretary Kelly singled out the November 20, 2014 memorandum titled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” which had provided the guidance for President Obama Administration’s civil enforcement priorities. This memorandum was much more lenient on who was a priority of removal.
Secretary Kelly stated that the DHS “no longer will exempt classes or categories of removable aliens from potential enforcement,” except those who are protected under DACA. While Secretary Kelly instructed DHS to focus its enforcement resources on aliens described below, he also directed DHS not to decline to bring enforcement action against those who are not so described. This means that an alien who is not described by one of the foregoing provisions cannot rely on that fact as a defense against DHS’s initiating of removal proceedings against you.
Basically, every alien without legal status or DACA, is removable in theory.
Secretary Kelly describes the new Enforcement Priorities.
All aliens in the United States are subject to immigration laws and enforcement. Remember, however, DHS and ICE is limited by its resources. Thus, “in order to maximize the benefit to public safety, to stem unlawful migration and to prevent fraud and misrepresentation,” Secretary Kelly instructed DHS personnel to prioritize aliens described in the following sections of the INA:
212(a)(2) — Inadmissibility for “Criminal and related grounds”;
212(a)(3) — Inadmissibility for “Security and related grounds”;
212(a)(6)(C) — Inadmissibility for “Misrepresentation”;
235(b) — Aliens who entered without being admitted or paroled (sometimes subject to expedited removal);
235(c) — Aliens subject to administrative removal for being inadmissible on security and related grounds;
237(a)(2) — Deportability for “Criminal offenses”; and
237(a)(4) — Deportability for “Security and related grounds.”
Secretary Kelly instructs DHS personnel to prioritize removable aliens, regardless of their basis of removability, who:
Have been convicted of any criminal offense;
Have been charged with any criminal offense that has not been resolved;
Have committed acts which constitute a chargeable criminal offense;
Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
Have abused any program related to receipt of public benefits (this is NOT related to your children receiving public benefits which he/she are entitled to);
Are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
There Is Far Less Prosecutorial Discretion Exercised Under The Trump Administration
The civil enforcement priorities of the Obama Administration were based on the concept of prosecutorial discretion, and fairness, and family unity. In the Interior Enforcement Memo, Secretary Kelly greatly narrows the scope of prosecutorial discretion and the officials who may approve the exercise of prosecutorial discretion on a case by case basis.
Since January 2017, we have witnessed the LACK OF EXERCISE OF DISCRETION by ICE officers, and DHS prosecutors on almost every aspect of enforcement and prosecution.
Additionally, the USCIS are requiring interviews where none ever existed, including multiple marriage based interviews, separated interviews for married couples applying for a spouse, U Visa adjustment of status applications, and also employment based green card applications.
The Fight Remains And There Are Many Rights, Remedies, And Ways To Obtain Lawful Permanent Residency Under This Administration.
An alien who is charged as removable should consult with an experienced immigration attorney immediately. I am available to meet with you on short notice. Although the new priorities expand the number of aliens the DHS intends to bring enforcement action against, they do not alter the statutory avenues for relief from removal. Aliens still have MANY grounds to defend themselves in removal proceedings.
We can discuss all of these issues, your rights and remedies at the initial consultation. Hope is not all lost. We still remain successful for many clients.