On 2 memos issued recently by the DHSThe U.S. Department of Homeland Security (DHS), the agency assigned to implement immigration policies, law and regulations of the U.S. government, recently issued two memoranda dated Feb. 20, 2017 to implement the Jan. 25, 2017 Executive Order (E.O.) of the President imposing a travel ban nationals of certain Muslim countries.

In the same E.O., the new administration laid down its policies such as a strict approach to the implementation of the laws that would better secure our borders and screen immigration applicants to detect and deter the commission of fraud, malice or harm. On very specific terms, the E.O. also explicitly states that a border wall will be built.

U.S. Department of Homeland Security (DHS)

The two DHS memos explained in detail how these policies can be effectively implemented.

It is interesting to note that in laying down the details on how the E.O. should be carried out, the memos simply cite existing provisions of the Immigration and Nationality Act (INA) and other related laws already in place in justifying the legality and enforceability of the E.O.

For instance, the matter of “building a wall” between the U.S. and Mexico finds support in a Congress-enacted law known as IIRIRA of 1996 or the  “Illegal Immigration Reform and Immigrant Responsibility Act (Section 102.” Congress has authorized the building of “physical barriers and road at the border” to prevent illegal entry of people who have not been given permission to enter the United States.

On the policy of deporting aliens who have been found to have been in this country illegally, not just those who have committed crimes or are involved in gang or drug-related activities, the memos provide that if the law is to be strictly enforced, Congress had enacted laws to justify the removal of all “deportable aliens,” including those who have (a) entered this country without inspection (crossed the border illegally); (b) committed document fraud; (c) lied before a consular or immigration officer to obtain an immigration benefit; (d) committed a crime, domestic violence or drug related felonies; (e) willfully misrepresented or engaged in fraud against any governmental agency; or (f) already ordered to be deported or removed which have not been executed (Sections 212[a][2], [a][3], [a][6][C]; 235[b] and [c]; and 237[a][2] and [4] of the INA).

On 2 memos issued recently by the DHS

Even the policy to expedite removal of certain aliens upon entry (if the facts permit) is also supported by laws that had been passed by Congress.

A very important point emphasized in the memos is a plan to increase the participation by local and state law-enforcement agencies in the apprehension of criminals who are not U.S. citizens. The apprehended criminals are to be reported to immigration enforcement agencies such as ICE (Immigration and Customs Enforcement) so that they could be duly prosecuted and removed from the U.S. if the facts warrant it.  This plan has been in place as well.

Since the participation by the local and state law enforcement agencies can happen only if there is an agreement between the local/state agencies and DHS, there has to be a more aggressive approach to convince local and state agencies to sign the said agreement.   

It appears that there has been only a shift of policy, not necessarily the law. As stated in one of the memos, with the exception of the memoranda that pertain to DACA applicants and recipients (issued June 15, 2012 and entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” and the memoranda (issued November 20, 2014 and entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who came to the United States as Children and with Respect to Certain Individuals who are Parents of U.S. Citizens or Permanent Residents”), all other existing memoranda, directives or field guidelines that conflict with the two memos are deemed “immediately rescinded.”

Gone are the days when the undocumented were free to roam the land without fear of being apprehended and sent back to their home country.

Question: Is the immigration law in this country dependent on the shift of the administration’s trend or policy in its implementation?

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