New DHS Memos Detail Broad Powers to Deport Undocumented


By Reuben S. Seguritan

March 1, 2017


In the two memos dated February 20, 2017, the Trump administration outlined the implementing rules for the Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” In a nutshell, the memos give federal agents broad discretion and powers to arrest, detain and deport any undocumented immigrant in the United States. The memos also direct federal immigration agencies to expand partnerships with local law enforcement to implement the immigration laws.

To recap, the Executive Order prioritizes the deportation from the United States of foreign nationals who: 1) have been convicted of any criminal offense; 2) have been charged with any criminal offense that has not been resolved; 3) have committed acts which constitute a chargeable criminal offense; 4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; 5) have abused any program related to receipt of public benefits; 6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States or; 7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

The memos order the hiring of more Customs & Border Protection (CBP) and Immigration and Customs Enforcement (ICE) officers to enforce the immigration laws. Furthermore, the memos implement the campaign promise of President Trump to fund and build a huge border wall on the south portion of the United States in order to prevent South Americans from illegally entering the United States.

The memos also remove the Privacy Act rights and protections from anyone who is neither a United States citizen nor a United States lawful permanent resident (LPR). This means that any information that undocumented immigrants, including asylum seekers, students, children and workers out of status, voluntarily gave to the government in the past can be used to identify and deport them now. During the previous administrations, undocumented immigrants, especially children, gave their personal information to the government to help them apply for asylum or the Deferred Action for Childhood Arrivals (DACA) program so they will not be deported. In addition, ICE can now publicly disclose the names of undocumented immigrants who committed crimes in the United States or were arrested or charged or released from prison or detention facilities.

In order to help the American victims of undocumented immigrants, the memos establish an office within the office of the Director of the ICE called the Victims of Immigration Crime Engagement Office (VOICE). This office will assist United States citizens and LPRs who were victims of crimes or offenses committed by undocumented immigrants by providing them with information about the status of criminal cases involving illegal immigrants and any subsequent deportation orders.

The most controversial part of the memos is the expansion of the “expedited removal” of undocumented immigrants. Border patrol agents now have the authority to quickly deport immigrants apprehended at the borders. There is no requirement for a hearing or court review or representation by a lawyer or an interpreter for the undocumented immigrant nor can he appeal the decision; he will be deported immediately. The memos add that if someone can’t prove he has been living in the United States continuously for two years, he could now be eligible for expedited removal.

The expanded expedited removal procedure clearly violates due process. There is no neutral decision-maker like a judge and no evidence required to determine whether a person should be deported or not. Furthermore, there is no hearing or judicial review or procedural safeguards such as the right to counsel or to have an interpreter present before a person can be deported.

Some elected officials have voiced their opposition to the memos. Mayor Bill de Blasio of New York City pledged the city’s cooperation in cases involving “proven public safety threats,” but vowed that “what we will not do is turn our N.Y.P.D. officers into immigration agents.” Rep. Adriano Espaillat added that the President is shifting the nation from “a country of aspirations” to “a country of deportation.”

The Trump administration can still make changes to the implementing rules to be more compassionate to undocumented immigrants, especially the minors. But for now, the strict implementation of the immigration laws is the norm.