On February 20, 2017, the Department of Homeland Security issued two memos, one of which is “Enforcement of the Immigration Laws to Serve the National Interest” (“2017 Enforcement memo”). This memorandum serves to implement the Executive Order President Trump issued on January 25, 2017 titled “Enhancing Public Safety in the Interior of the United States.”

The 2017 Enforcement Memo addresses a number of issues but the focus of this post will be the enforcement priorities and prosecutorial discretion.

On November 20, 2014, the Department of Homeland Security Jeh Johnson issued a memorandum titled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” (2014 Memo). The 2014 memo set forth the priorities for enforcement for the Department of Homeland Security. The priorities were those who posed a threat to national security; border security; and public safety; those who had multiple misdemeanor convictions, including driving while under the influence; those who had entered after January 1, 2014; those who had abused a visa or the visa waiver program; and those who had been issued a final order of removal after January 1, 2014. The 2014 provided clear guidance to DHS’ employees and implemented, it permitted individuals to obtain administrative closure of their case in the immigration court or stays of removal, if they had a final order of removal.

The 2017 Enforcement Memo says that the Department is no longer going to exempt from enforcement categories of individuals, as supposedly the 2014 did, and casts a much wider net. Under this memo, those who criminal convictions or have admitted to committing crimes, those who present a threat to national security, those who committed fraud or misrepresented to immigration in the course of requesting an immigration benefit or entry into the United States, and those who are arriving into the United States.

Similar to the 2014 memo, the 2014 Enforcement Memo prioritizes those who have been convicted of a criminal offense. However, it departs from it in significant respects because those who have been charged with any criminal offense are a priority for enforcement, even if the criminal matter has not yet been resolved. This memo also adds to the list of enforcement priorities those who have committed fraud or misrepresented in relation to any matter before a government official, not just immigration matters, and those who have abused any program related to receipt of public benefits.

Under the 2014 memo, DHS’ employees had clearer guidance about how to exercise their prosecutorial discretion. While the 2017 memo maintains prosecutorial discretion and permits its exercise on a case-by-case basis, in practice DHS’ employees are exercising it less and less and in extreme circumstances. The result is the disruptions if the lives of many families.

~Anielka S. Godinez