The Department of Homeland Security (“DHS”) has issued guidelines providing details regarding the implementation of President Trump’s recent Executive Orders on immigration policy.   The two documents are 19 pages in length.  The following are some of the highlights:

  1. Detention of potentially removable aliens is now favored over release.    The practice known as “catch and release” is ended
  2. Immigration and Customs Enforcement (“ICE”) and Customs & Border Patrol (“CBP”) are instructed to consider the release of detained aliens only under very limited circumstances, including:
    1. When the alien is granted bond by an immigration judge;
    2. When the alien is being removed from the United States;
    3. When the alien is deemed to be a citizen or lawful permanent resident of the U.S.;
    4. When the alien has established extreme humanitarian reasons justifying release; or,
    5. When the alien is deemed to have a credible fear of returning to his/her home country.
  3. ICE will seek the assistance of local law enforcement in the task of identifying and detaining individuals that are undocumented or otherwise believed to be subject to removal.
  4.  DHS will hire 10,000 additional ICE officers, 5,000 additional CBP officers and 500 Air & Marine Agents/Officers.
  5. Prosecutorial discretion is going to be very difficult to obtain; it is to be exercised on a case-by-case basis ONLY and not on the basis of any exemption of a specified class or category of aliens; all prior guidelines regarding prosecutorial discretion are rescinded, EXCEPT the provisions of the Executive Order relating to Deferred Action for Childhood Arrivals (“DACA”) remain in place.
  6. The guidelines for what is referred to as “expedited removal” (removal without the right to see a judge) are greatly expanded; undocumented aliens who cannot prove to the satisfaction of an immigration officer that he/she has been present in the United States continuously for a period of two years is subject to expedited removal without the right of review (the prior rule applied only to aliens picked up within 200 miles of the border; now it is applied anywhere in the U.S.  Additionally, the previous rule was 14 days rather than 2 year).
  7.  ICE is directed to refer parents that played a role, directly or indirectly, in smuggling children into the United States, for criminal prosecution.
  8. Aliens arriving by land may be returned to the country from which they entered pending the conclusion of any applicable removal proceedings.

We will continue to keep you informed as additional information becomes available.

Observations on DHS Guidelines