Travel ban stay and DHS Memoranda

Shortly after the signing of President Trump’s executive orders on January 25th and 27th subsequently, a number of litigations sparked across the nation. The most contested issues were provisions 3(c), 5(a), 5(c), and 5(e) of the EO titled Protecting the Nation from Foreign Terrorist Entry into the United States that imposed the travel and refugee ban. The Ninth Circuit Court in Washington state acted swiftly to issue a Temporary Restraining Order on February 3rd, 2017, and further on February 9th, 2017, denied the federal government’s request for stay of the travel ban appeal and thus effectively halting the travel ban. Immigrant and non-immigrant visas that were previously provisionally revoked were now reinstated as valid barring any other issues. Furthermore, all individuals, irrespective of their nationality, may now apply for visas.

Following the decision of the Ninth Circuit court halting the travel ban, President Trump made it clear that he plans to rescind the January 27th order and issue a new order in its place. It is currently unclear what changes or additions the new order may contain with respect to travel and refugee restrictions, but we know that it is meant to eliminate the constitutional concerns of the original order.  

Federal government, through DHS and ICE, has been implementing the provisions of the January 25th order with respect to enforcement and detention at the border and across the interior of the nation. DHS has recently issued memoranda on the implementation of the executive order. As I mentioned in my previous post, the order seems to expand the priority grounds for deportation to practically any person that has committed a crime, to include those in violation of immigration law. However, as DHS notes in the memoranda, it will prioritize non-citizens who are removable for criminal charges.

The DHS memoranda rescinds the existing guidelines for the exercise of prosecutorial discretion. Prosecutorial Discretion is a long standing practice whether and to what extent the federal government will enforce immigration laws in a particular individual’s case. Additionally, the documents direct DHS to expand the “expedited removal” program. As it previously stood, the expedited removal program allows for removal of certain non-citizens who are apprehended and inadmissible for reasons of misrepresentation or lack of valid entry documents. The program applies to such individuals who are apprehended within 14 days of arrival or within 100 miles of the border. However, DHS seeks to expand the program to individuals who cannot prove their presence in the US for two years or more.

Lastly, the documents indicated that certain existing guidelines will state in place. Specifically, DHS referred to the DACA program, Sensitive Locations Memorandum, and Guidance on Parole for Asylum Seekers. The Sensitive Locations Memo identifies the policy of DHS to avoid enforcement actions in “sensitive locations” such as places of worship, schools and hospitals.

With regard to enforcement, and especially ICE raids that have been recently highlighted in the news, it is important to note that ICE has always conducted such raids. In the past, the enforcement was directed at apprehension of only non-citizens who had criminal history. If ICE agents came across other non-citizens without valid status, they have normally “overlooked” such individuals. The rumour is that more recently, while ICE’s main intent is to apprehend non-citizens with criminal history, they may additionally detain other non-citizens who are out of status. I cannot tell with certainty how much of the reports are just a media hype and how much is really true. In either case, if you do come into contact with ICE agents, please remain calm.  

  • You have the right to remain silent and may refuse to speak to the ICE agent.
  • If ICE is at your residence, do not let them in your house without a valid warrant that is signed by a judge. ICE has department issued warrants as well but those do not let them enter your home without your permission. It must be signed by a judge.
  • You have the right to speak to a lawyer. If you are asked to sign anything, do not do so without speaking to a lawyer first!
  • You should carry with you any valid immigration documents you have even if it is just a copy of the original. And lastly,
  • If you are worried that you may be detained, let the agent know that you have minor children (if you in fact do have minor children).

If you have any questions or find yourself in a difficult situation involving your immigration status, please call my office (717) 746-8523 to set up an appointment. I’ll be happy to help you!

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