US DHS Memo on Trump’s Executive Orders on Immigration and Removal

March 3rd, 2017

The U.S. Department of Homeland Security issued a memo implementing President Trump’s two executive orders issued in January 2017 on immigration and removal, which expand the administration’s enforcement targets, requests more border officers and alludes to a new policy on expedited removals.

The DHS prioritizes for removal aliens who:

• Have been convicted of any criminal offense;
• Have been charged with any criminal offense that has not been resolved;
• Have committed acts that 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;
• Are subject to a final removal order but have not complied with their legal obligations to depart the US; or
• In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

What is extremely concerning about this new set of priorities is its glaring denigration of values serving as the bulwark for justice, fairness and democracy in the US. Agents are now able to seek to remove aliens who have “committed” criminal acts or who are charged with them before being found guilty by a tribunal. What happened to the presumption of innocence in our country? How are agents to determine if someone has committed an illegal act? Who are these agents who are making these critical decisions that will substantially impact a person’s life, and his immediate family’s lives? These priorities are ominous and foretell institutional abuse and lack of transparency.

The expanded use of expedited removal may be unconstitutional, since the US Supreme Court has held that the Due Process Clause applies to undocumented immigrants. Expedited removal has been used since 1996. It circumvents the immigration court system by allowing federal agents to determine if the person should be deported. If the undocumented immigrant claims a fear of persecution or torture then the immigrant is interviewed by US Citizenship and Immigration Services to see if there is a credible fear of persecution and the immigrant should be allowed to apply for asylum in the US. The undocumented immigrant has no right to an attorney and appeals are limited.

Expedited removal is usually only for those caught within 100 miles of the US-Mexican border and who appear to have entered the US within the previous two weeks, although the law allows for it to be used for removal of those who have entered the country within the past two years. Trump’s order increases the range. The Department of Homeland Security has not formally expanded the expedite removal process. It first must publish the policy in the Federal Register and give time for comment from the public.