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Department of Homeland Security Issues Two Memos Regarding Implementation of Two Recent Executive Orders on Immigration Enforcement

February 27, 2017

On February 20, 2017, the U.S. Department of Homeland Security (“DHS”) issued a pair of memos outlining how DHS will implement the President’s two recent executive orders concerning immigration enforcement. The DHS memos rescind earlier guidance and now more broadly define the immigrants in the country illegally who are considered “priorities for removal.” The memos also announce a planned expansion in the law enforcement resources dedicated to federal immigration enforcement activities.

The first of the two memos, entitled “Enforcement of the Immigration Laws to Serve the National Interest,” establishes, among other things, that DHS will “prioritize removable aliens who: (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense ….”  This replaces the Department’s previous two-tiered policy prioritizing removal of those who had been actually been convicted of criminal offenses constituting felonies, serious or repeated misdemeanors, and those suspected of terrorism or espionage.  Individuals may now be considered a priority for removal not only in the absence of a conviction, but any criminal charge at all.

The second memo announces DHS’s plan to hire an additional 5,000 Border Patrol agents and expand what’s known as the “Section 287(g) Program.”  That program, authorized by Section 287(g) of the Immigration and Nationality Act, permits DHS to enter into written agreements with states or their political subdivisions for the purpose of authorizing local officers or employees to perform the functions of immigration officers “in relation to the investigation, apprehension, or detention of aliens in the United States.”

On February 22, 2017, Connecticut Governor Dannel P. Malloy issued State Guidance for Law Enforcement in Connecticut to all state and local law enforcement personnel.  The State guidance advises that compliance with the 287(g) Program is “strictly voluntary and the Executive Order and implementation memoranda do not require state or local law enforcement agencies to submit to the authority of Immigration and Customs Enforcement (ICE).”

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