New U.S. immigration rules will increase detention of undocumented immigrants and speed up deportations

According to new U.S. government guidelines released today, no undocumented immigrant will be exempt from detention and deportation, although the top priority will continue to be those who have had criminal or immigration problems or are a danger to national security.

The guidelines do not affect immigrants protected by the Deferred Action for Childhood Arrivals (DACA) program. Individuals with DACA will remain temporarily protected from deportation as long as they do not commit certain crimes or pose a danger to national security and the program remains in effect.

The U.S. Department of Homeland Security (DHS) today issued two memos entitled Enforcement of Immigration Laws in the National Interest (Enforcement of the Immigration Laws to Serve the National Interest) e Implementation of the President's Border Security and Immigration Enforcement Enhancement Policies. (Implementing the President's Border Security and Immigration Enforcement Improvements Policies), signed by DHS Secretary John Kelly, which explain how the immigration executive orders signed by President Donald Trump in January will be implemented.

The objective of the memoranda is to strengthen immigration enforcement by expanding detention targets and expediting the processing and deportation of undocumented immigrants who do not have a legal way to remain in the country. To this end, it stipulates a series of actions.

These are the key points of the new guidelines:

DHS will enforce immigration law. - With extremely limited exceptions, any person who violates immigration laws and is deportable is subject to arrest by the authorities and deportation from the United States.

Although no undocumented person is exempt from deportation, priority will be given to foreigners who:

  • have just arrived in the United States illegally (arriving aliens).
  • have committed acts that make them subject to deportation
  • have been convicted of any crime
  • have been charged with any crime that has not been resolved
  • have committed fraud or willful misrepresentation in connection with any official matter to a government agency
  • have abused public benefit programs
  • are subject to a final order of deportation/removal, but remain within the United States
  • are a risk to public safety or national security

2. Transnational gangs and other forms of organized crime shall be specifically targeted for immigration enforcement.

3. DHS will retain case-by-case discretion to enforce immigration law, but again, no class of aliens is exempt.

4. Establish policies on the arrest and detention of foreigners. - Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) will only release aliens in their custody in limited circumstances. For example, if they are to be removed or expelled from the country, if they obtain an order of relief by law, or it is determined that the alien is a U.S. citizen, lawful permanent resident, refugee or asylee, or has other protected status.

The use of alternatives to detention (such as shackling) will also be available on a limited, case-by-case basis. In situations where there is not space in detention facilities to detain all detainees, individuals who are deportable on criminal, fraud or national security grounds will be given priority for detention.

5. DHS will not conduct actions in schools, hospitals, places of worship, and certain other locations (sensitive locations).

6. DHS will hire 10,000 ICE agents, 5,000 CBP agents and 500 air and marine agents/officers. 

7. DHS will immediately reinstate the Secure Communities programincluding the creation of new forms for the issuance of immigration detainers.

8. DHS will identify incarcerated persons who may be deported from the United States.

9. Expansion of the program 287(g) in the border region - for the recruitment of local police officers that agree in performing the duties of an immigration officer, including assisting in the detention of undocumented aliens with criminal records, as authorized by section 287(g) of the Immigration and Nationality Act.

10. Accelerated deportations or expedited removals - the processing of deportations and removals of aliens who recently entered the United States illegally will be expedited, in some cases, without having to bring them before an immigration judge.

Previously, the expedited removal process only applied to immigrants found within 100 miles of the border who had entered the United States within the last 14 days. From now on, the guideline includes anyone who has entered the country illegally within the last two years, regardless of where they are in the United States.

Expedited removals generally will not apply to unaccompanied children, asylum seekers, persons who have been physically present in the United States continuously for at least two years, and other aliens who have a legal remedy to remain in the country.

11. Return of foreigners to neighboring countries - If there is no danger of illegal reentry, the United States will return the alien to the contiguous country through which he or she entered to await the outcome of removal proceedings.

This measure is for DHS to save on the costs of housing undocumented immigrants in detention centers and devote more resources to undocumented immigrants who are a higher priority.

12. Increased scrutiny of asylum applications to prevent fraud.

13. Penalization and deportation of parents who pay traffickers to bring their children to the United States.s - Bringing children with the help of smugglers exposes them to robbery, extortion, kidnapping, sexual assault and other crimes of violence during the dangerous journey to the United States. Although the intent is family reunification, DHS considers the smuggling or trafficking of alien children to be intolerable. Therefore, it will criminally prosecute those who directly or indirectly facilitate child smuggling or trafficking. This includes criminally prosecuting and placing parents and relatives of minors in deportation proceedings for contributing to child trafficking.

14. Establishment of Programs for the Collection of Fines and Authorized Civil Penalties. - As soon as practicable, the authorities will issue guidelines and promulgate regulations for the collection of all fines that the law permits to be levied on deportable aliens and those who facilitate their unlawful presence in the United States.

15. Creation of an office within ICE to assist the families of people killed by undocumented immigrants.

16. Directs DHS to take steps to penalize countries that do not accept deported aliens.

17. DHS will continue to build the wall along the border in the El Paso, Texas, Tucson, Arizona, and El Centro, California sectors.

It is of utmost importance that any foreign national who is subject to the new guidelines consult with an immigration attorney as soon as possible to determine his or her legal options.