How Do DHS’s New Rules Affect You?

By Attorneys Rafael Torres III & Nancy E. Miller

On February 21, 2017, the Department of Homeland Security (“DHS”) released two new memoranda, which outline how DHS plans to implement President Trump’s recent executive orders concerning the immigrant community. You are probably wondering how these new memoranda may impact you or your family; Reeves Miller Zhang & Diza is here to help.

The memoranda demonstrate that DHS intends to aggressively enforce removal provisions against all who may have violated any immigration law. The first memorandum “Enforcement of the Immigration Laws to Serve the National Interest,” focuses on strict enforcement.  Of particular note is that DHS is broadly expanding its enforcement priorities. DHS states that only those covered by the memoranda from DHS regarding the program commonly known as Deferred Action for Childhood Arrivals, or DACA, are exempted from enforcement. In conjunction with this, DHS is expanding enforcement priorities to include those who have “committed acts which constitute a chargeable criminal offense.” This is very broad. It includes those who have been charged with, but not convicted of, a crime or those whom the government believes may have committed a crime even if they have not been charged.

Furthermore, many entries into the United States that do not comply with the law (including reentry after removal without government permission) are violations of criminal law.  Additionally, DHS states that anyone who is a priority is treated as having equal priority for enforcement actions. Thus, DHS now prioritizes anyone who has committed acts which constitute a criminal offense in the same category as those who have actually been convicted of a crime. The stated plan for enforcing these new priorities includes the hiring of thousands of new DHS officers, using local law enforcement as immigration officers, as well as requiring local law enforcement to provide information to DHS about local communities to aid in carrying out their enforcement priorities.  Do non-citizens still have rights in this increased enforcement atmosphere?  Yes, they do and it is important for them to know and exercise those rights as well as to file for all immigration benefits for which they may be eligible.

The second memorandum “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” describes new DHS policies and procedures to increase penalization of entry without inspection or with false documentation. A major portion of this memorandum emphasizes the importance of detaining persons as “the most efficient means by which to enforce the immigration laws,” and, as such, restricts the ability for detained persons to secure their release from detention. This memorandum also repeats the goal of hiring thousands of additional officers and agents, together with the use of local law enforcement to “perform the functions of an immigration officer,” including the apprehension and detention of persons. It is unclear how the local law enforcement agencies will respond to this command, but it appears safe to conclude that DHS’ overall strength in terms of numbers of officers investigating and detaining persons will increase dramatically.

Another major portion of this memorandum expands the use of expedited removal against certain persons. Expedited removal is the process by which DHS can remove a person from the United States without a hearing before an immigration judge or review by the Board of Immigration Appeals. DHS reiterates in this memorandum that it has the authority to employ the expedited removal process against those who are apprehended anywhere in the United States and who entered without inspection (meaning without papers) or who sought entry by means of a false claim to U.S. citizenship or without valid entry documents, and who have not been continuously present in the United States for two years. Formerly, expedited removal was only used against persons apprehended within 100 miles from a United States border and within 14 days of the person’s entry to the United States. There is no appeal of an expedited removal order.  It can only be contested by a claim of credible fear of returning to one’s home country.

How does all of this affect you? Clearly, anyone whose immigration status is not settled and secure is at risk.  As stated above, non-citizens (as well as citizens) should know and exercise their rights.  They should consider seeking the immigration benefits that they are legally eligible for.  In some cases, this may mean applying for naturalization as soon as possible. In other cases, this may mean filing a petition for family members while that avenue still exists. Post-conviction relief of a criminal matter may be a timely consideration.  No matter what your situation, the best thing you can do is to immediately consult with an experienced and knowledgeable immigration attorney who can guide you through these uncertain times.