Recent actions and policies surrounding U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS) (all housed under the Department of Homeland Security), have caused a flurry of news. This week’s policy memos are dense and make numerous references to published law, some of which is on the obscure side. So for this post I gathered not only the documents themselves but also the sources referred to in those documents.
If this is a topic that matters a lot to you, I recommend going into the source law whenever it’s referenced because many clauses there refer to other clauses in the law, building in clarifications or exceptions. I’ve included one such instance in the detailed sources below, but after initially trying to do this for all the references I realized that a blog post wasn’t the best place to do that kind of multi-level reference in every case. So I’ll just say here that every reference is more complicated than it looks at first, especially if you (like me) aren’t used to reading laws.
First, some context
- Here is the Immigration and Nationality Act (INA), laid out by section number. Both memos reference this act extensively, so you’ll want to have it open in a tab as you read them.
- Elsewhere you may find these laws referred to as 8 U.S.C. Chapter 12 because after public laws are passed they are compiled by topic into the United States Code, and 8 U.S.C. Chapter 12 is the compiled law on the topic of immigration and nationality.
- The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (pages 547-725) was passed as part of an omnibus spending bill, and it amended the INA significantly starting in 1997. Sometimes called IIRIRA, this particular set of revisions to the INA contained the original language about building a border wall that Secretary Kelly references in the first memo. Of course, the 1996 language has itself been amended, which is why the U.S.C. version is so handy because it keeps everything (mostly) up to date.
- “Catch and Release” policies have been debated for years. The first immigration-related use of the term that I could find was in a March 6, 1997 hearing entitled “Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations, FY98.” In 2006, Secretary Michale Chertoff testified in the Senate that “catch and release” and been ended as of August 2006. Later testimony indicated that “catch and release” had actually only ended for other-than-Mexicans (OTM) (page 48), and hearings and bills keep coming up from then on calling for funding and resources to keep “catch and release” from being the de facto reality.
- Here is the ICE year-end report for FY2016, including deportation numbers over time.
- And here is the CBP’s summaries and statistics page.
Memorandum: Implementing the President’s Border Security and Immigration Enforcement Improvement Policies
Broadly, this memo ends various ICE and CBP policies that Secretary Kelly calls “catch-and-release,” and it emphasizes that, in general, deportation is the law and any exceptions must be made on a case-by-case basis rather than on the basis of “pre-determined categories.”
Here are links to the sources or programs referenced in this memo:
- This memorandum provides guidance on implementing the Executive Order “Border Security and Immigration Enforcement Improvements,” issued by the President on January 25, 2017. In general, the provisions in the memo were all ordered by that executive order.
- There aren’t enough resources to deport everyone immediately, so “as the Department works to expand detention capabilities […] detention resources should be prioritized based upon potential danger and risk of flight if an individual alien is not detained, and parole determinations will be made in accordance with current regulations and guidance. See 8 C.F.R. §§ 212.5, 235.3.”
- The memo tells the Director of ICE to enter into 287(g) agreements with all willing and qualified jurisdictions, thereby using local law enforcement to perform the functions of immigration officers. The Executive Order “Enhancing Public Safety in the Interior of the United States” says that states not willing to enter into these agreements would lose access to most Federal grants (see paragraph 29)
- Secretary Kelly directs the Under Secretary for Management to locate sources of funding to build a border wall, saying, “Congress has authorized the construction of physical barriers and roads at the border to prevent illegal immigration in several statutory provisions, including section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [page 555-556], as amended, 8 U.S.C. § 1103 note.” [Once you get to Section 1103, search for the section “Improvement of Barriers at Border” down in the notes area. And as an aside, this provision was the subject of a Hearing in 2008.]
- In the “expedited removal” section, citing Section 235(b)(l)(A)(iii)(I), the wording from the law that makes certain removal decisions “unreviewable” is: “(I) In general.-Subject to subclause (III), if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review.” Subclause (III) then says “(III) Review of determination.-The Attorney General shall provide by regulation and upon the alien’s request for prompt review by an immigration judge of a determination under subclause (I) that the alien does not have a credible fear of persecution. Such review shall include an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. Review shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination under subclause (I).”
- Unaccompanied alien children are defined in a different section of the law: 6 U.S.C. § 279(g)(2) [Here’s just the relevant wording]. In making policy about unaccompanied alien children, this memo makes reference to:
- Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 [page 32] (codified in part at 8 U.S.C. § 1232), and
- Section 462 of the Homeland Security Act of 2002 [page 68] (6 U.S.C. § 279)
- The Department will publish in the Federal Register a new Notice Designating Aliens Subject to Expedited Removal sometime soon (I’ll link to it when it is published).
You may have heard that Mexico isn’t pleased with the part of this memo that says it will deport anyone crossing the Mexico/U.S. border back to Mexico, regardless of whether the person is a Mexican national. Here’s the section of the memo that says that: “Section 235(b)(2)(C) of the INA [here are the relevant words] authorizes the Department to return aliens arriving on land from a foreign territory contiguous to the United States, to the territory from which they arrived.” Secretary Kelly emphasizes that this applies to children as well, “subject to the requirements of section 1232, Title 8, United States Code.”
Memorandum: Enforcement of the Immigration Laws to Serve the National Interest
Broadly, this memo provides similar guidance to the other memo, emphasizing that deportation is the general rule with exceptions made on a case-by-case basis, laying out near-term priorities, etc. The main difference between the memos is that the first deals directly with border locations and the second deals with the nation’s interior.
Here are links to the sources or programs referenced in this memo:
- This memorandum provides guidance on implementing the Executive Order “Enhancing Public Safety in the Interior of the United States,” issued by the President on January 25, 2017. In general, the provisions in the memo were all ordered by that executive order.
- The memo begins: “With the exception of the June 15, 2012, memorandum entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,’ and the November 20, 2014 memorandum entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents,’ all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal are hereby immediately rescinded — to the extent of the conflict — including, but not limited to, the November 20, 2014, memoranda entitled ‘Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,’ and ‘Secure Communities.'”
- The memo references Article II, Section 3 of the United States Constitution and Section 3331 of Title 5, United States Code as sources of authority.
- Secretary Kelly says that the agencies “should prioritize for removal those aliens described by Congress in Sections 212(a)(2), (a)(3), and (a)(6)(C), 235(b) and (c), and 237(a)(2) and (4) of the Immigration and Nationality Act (INA).”
- It references Forms I-247D, I-247N, and I-247X
- The memo tells the Director of ICE to expand the 287(g) Program to include all qualified law enforcement agencies, increasing the local law enforcement agencies eligible to enter into agreements to perform the functions of immigration officers. The Executive Order that this memo implements says that States not willing to enter into these agreements would lose access to most Federal grants (see paragraph 29)
Two caveats: 1) Not all knowable things are knowable using official, original published sources, but that’s the limit I’ve set for myself even when that’s inconvenient or frustrating, and 2) I am a librarian trained in tracking down and evaluating sources — nothing more or less than that. I’m doing my best to find the most authoritative version of the primary sources behind the news, and I welcome suggestions and corrections. If you or someone you know would like to add to my collection of primary sources, please let me know.