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February 24, 2017

DHS Issues Memos Relating to the New Immigration Executive Orders that have the Potential for Sweeping and Unprecedented Impact

On February 20, 2017, Department of Homeland Security (DHS) Secretary, John Kelly, issued two separate memos in response to the Trump Administration's January 25th Executive Orders on immigration. The memos, "Enforcement of the Immigration Laws to Secure the National Interest" and "Implementing the President's Border Security and Immigration Enforcement Improvements" attempt to make major changes to existing immigration law, policies, and procedures.

While we anticipate future litigation over these proposed changes, we cannot yet speculate what may or may not survive a courtroom challenge. At this point, we can only highlight the ways in which DHS intends to carry out these new Executive Orders.

It is initially important to note that, despite statements made to the contrary during the Presidential campaign, the Deferred Action for Childhood Arrivals (DACA) program has not been affected by the Executive Orders or the new DHS memos. The DACA, also implemented by an Executive Order issued by the Obama Administration, allows certain eligible undocumented individuals a temporary reprieve from removal, along with the ability to obtain authorization to accept employment in the United States.

However, other facets of immigration law are drastically changed under these new memos. For instance, DHS has stated that it will no longer focus only on individuals with serious criminal convictions or those who pose a threat to national security as a basis for removal. Instead, DHS has now prioritized those for removal as any foreign national who has been convicted of any criminal offense. Additionally, those who have been charged with a crime, regardless of whether the charge has been resolved, also are now viewed as a priority to target for removal. Similarly, the DHS memo includes as priorities individuals who have not been charged, but who have admitted to engaging in criminal behavior, as well as those who have committed fraud or misrepresentation in connection with any government agency or who have abused a public benefit program.

Another major change relates to custody of individuals charged with removal from the United States. DHS has stated that it will seek to detain all individuals charged with removal rather than seeking detention only for those who pose security risks or who are subject to the mandatory detention statute listed in the Immigration and Nationality Act.

The other point to highlight is the intended change to the expedited removal process. Expedited removal provides immigration officers with the authority to immediately remove individuals under certain grounds if they are encountered within 100 miles of a border. The DHS memos attempt to greatly expand on that authority and indicate that expedited removal may be utilized anywhere within the United States and that individuals who have been present the U.S. for less than 2 years may be subjected to the process. Expedited removal allows for removal without any appearance or hearing before an immigration judge.

The memos contain several other proposals, including the anticipated hiring of thousands more immigration officers and border patrol officials. Additionally, the memos address construction of the much publicized "wall" along the Southern Border, along with several more detention centers.

While these changes haven't been implemented on a national level yet, it is best to be proactive. The immigration lawyers at Barclay Damon, LLP are monitoring this situation closely and are ready to answer any questions you may have.

If you have any questions with respect to the information in this alert, please contact Jill Apa at (716) 844-7070 or or our Immigration Practice Area Chair Eileen Martin at (716) 566-1421 or


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