On February 20, 2017, DHS Secretary John Kelly issued a memo entitled “Enforcement of the Immigration Laws to Serve the National Interests.” This blog entry reviews the effect of the new memo on prior guidance.
The new memo specifically rescinds any conflicting prior DHS memos and specifically names the November 20, 2014, memoranda entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” and “Secure Communities.”
The new memo specifically excludes 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.”
Analysis: DACA as mentioned in the 2012 memo remains in full force. It is interesting that the 2014 DACA/DAPA memo is specifically excluded as well. This is the Obama era memo that has been stayed because of litigation in the U.S. District Court for the Southern District of Texas. Is DHS going to go ahead with the DACA expansion and with DAPA as set out in the 2014 memo? Although not specifically mentioned, I believe that the August 23, 2013, memo entitled “Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities Directive (Parental Interests Directive)” remains in force as it does not seem to conflict with anything in the new memo.
The new memo states that DHS will no longer exempt classes or categories of removable aliens from potential enforcement except as set out in the 2012 DACA memo or the 2014 DACA/DAPA memo. I think this signals that any prosecutorial discretion sought at this time should probably only include persons in those classes set out in those particular memos.