New ICE Enforcement Rules … and Options

MEMORANDUM

Reference: New enforcement policies by ICE

Date: July 10, 2017

The Trump administration has introduced extreme changes in domestic immigration enforcement priorities.  We have heard from many of our clients who have voiced concerns, especially from those clients who have appointments with ICE.  Should you go to your appointment?  What will happen if you don’t?

What exactly has happened?  How to respond, if you have an outstanding order of deportation or removal?

On January 25, 2017, President Trump signed an Executive Order on Immigration Enforcement.  On February 20, 2017, DHS issued a Memorandum on “Enforcement of the Immigration Laws to Serve the National Interest,” which implements President Trump’s Executive Order on this subject.  DHS is the federal department charged with immigration enforcement through the Immigration and Customs Enforcement agency (ICE).

In short, we have a new set of rules on domestic immigration enforcement. 

The purpose of this memorandum is to explain the new rules, and to offer guidance so you and your families can prepare, and plan — including contingency plans in the event ICE elects to put your alien family member in detention and elects to reinstate the order of removal or deportation.

I hope that this memorandum will be helpful to you in these difficult times.  It is better to have even bad news than to not know what to do.  “Forewarned is forearmed,” as the saying goes.  “Más vale prevenir que curar.”  

What Has Changed: The New Enforcement Priorities

By his executive order, President Trump has rescinded (withdrawn) President Obama’s executive orders related to immigration enforcement.  Under former president Obama, immigrants with serious criminal convictions, recent removal orders, and recent arrivals (within two years) were prioritized for removal, but this is no longer the case.  Under the new executive order issued by President Trump, all undocumented (“illegal”) immigrants are now a priority for removal.

The DHS memo, which implements the new executive order, warns: “Department personnel shall faithfully execute the immigration laws of the United States against all removable aliens.”  The term “removable aliens” includes foreign nationals with removal orders issued at any time, even those from many years ago.

The DHS memo gives special priority to those foreign nationals who have violated certain laws — even though these violations do not necessarily make one a “removable alien”:

  • immigrants convicted of criminal actions, and
  • immigrants charged with a crime, even though the case is not completed, and
  • immigrants who have committed acts which constitute a crime,and
  • immigrants who have committed fraud before a government agency, and
  • immigrants who have abused a program which provides benefits, and
  • immigrants who are subject to a final order of removal but have not left the United States, and
  • immigrants who, in the judgment of a DHS officer, pose a risk to the US.

What This Means If You Have a Deportation or Removal Order

If you have a check-in date with ICE, then you are a priority for DHS enforcement under the sixth category.  You are “subject to a final order of removal but have not left” the United States.  This is because the nature of only persons with outstanding deportation (cases dating from 1997 or earlier) or removal orders are subject to  the requirement to report to ICE.  This is a process for ICE to monitor your situation to see if you have a way to advance to legal status.

And, if you have criminal convictions on top of this (the first category in the DHS memo, above), then the outlook is not good, particularly if there is a serious charge or if you have recently been arrested.

Unfortunately, another obstacle is that the DHS attorneys, called the Office of the Chief Counsel (OCC) have now shifted to a position of blocking requests by private immigration attorneys, to reopen deportation and removal cases.  In the past, this  made it possible for removal orders to be administratively closed or even terminated, if there were good grounds — such as the opportunity to go forward with a family-related permanent residence case, but no longer.  Now, If the deportation or removal order cannot be terminated, then it is not possible to proceed to permanent residence at least without leaving the United States.  Neither DHS nor the OCC has issued any guidelines on possible exceptions, for humanitarian reasons — or any reason.

This means that, thanks to the Trump administration’s enforcement policies, we have no way to work through these cases to permanent residence, at least while you are in the United States.

Summary and Guidance

What about you and your family?  Let’s assume you fall within the sixth category — you have an outstanding deportation or removal order.  Let’s also assume, you have an Order of Supervision — ICE permission to report, or “check in,” on specified dates at the local ICE office. 

You will have  two options, about obeying the instructions to report, or “check in,” with ICE on the date designated on the notice or Order of Supervision:

  • If you decide to go to your appointment, you are at risk of being detained and deported, under the new rules.
  • If you decide not to go to your appointment, you run a greater risk, as you will become a fugitive and ICE personnel will come and arrest you, detain you, and deport you.

Unfortunately, there is not a “safe” option.  It is a very real possibility that you will be detained and deported, in time, whatever your decision.  We advise, however, that you do go to the appointment, as it is better not to become a “fugitive” from ICE.

The better strategy, then, is to prepare to go to the appointment, prepared for possible detention and deportationThe “good news” is that you can lessen the chances of this happening, if you have proof that you have a meritorious, or deserving, case for consideration on humanitarian grounds. 

My office can help prepare an application for a one-year “stay” (delay) of removal, called a “Form I-246” application.  You must deliver it in person to ICE, with a filing fee and with ample proof of your humanitarian concerns.  You will likely be given a form with your next appointment date, while the application for stay is reviewed, a process that may take several months.

If you decide to go to your appointment, and the ICE officer gives you paperwork, please contact our firm as soon as possible so that we can make a copy of the paperwork and store it in your file.  Should you lose your paperwork, it is very difficult to get a new copy.

What You Can Do, If You Have an Appointment with ICE

And so, in most cases, there is not any paperwork which we can file before your ICE appointment that will guarantee that you can safely leave the appointment, with a new “report date” to return to ICE in the future.  We do recommend taking the following steps, however:

(1)        Discuss with our firm to help you file a “Form I-246” application for stay (delay) of the removal order, with extensive supporting documentation to show your family ties, USCIS approval notices (such as family petition, Form I-130, filed by a US citizen spouse or parent or child), health issues for you or any family member, dangerous conditions in your home country, etc.  You must bring the request (Form I-246), with money order for filing fee, attorney cover letter and documentation, to your ICE appointment.

(2)        Discuss with our firm your fears about returning to your country.  Your circumstances, if extreme enough, might support a request for protection, under the US immigration laws.  For example, there are forms of relief related to “asylum,” which is based on proof that you fear you will be persecuted by your country’s government, or agents protected by that government, because of your race, ethnicity, religion, political opinion, or “social identity.”  I strongly urge you to discuss any such fears with our firm, or with another immigration law firm, as soon as possible.

(3)        Bring all paperwork issued by ICE, showing your current appointment and your history of keeping your previous ICE appointments, and notations by ICE.

(4)        Bring all identification, including your home country passport.  

(5)        Bring several hundred dollars and clothing to your appointment at ICE, in case you are taken into custody for processing, for eventual deportation or removal.

Conclusion

Our office recently communicated with ICE in our state.  We were advised that, after three successful I-246 applications, the ICE field office is very unlikely to continue approving I-246 applications, and will require that travel arrangements be made to leave the US in three to six months.

What might be your options, after leaving the United States?

There is a procedure for individuals to apply for permission to re-enter the United States legally, after they have left the United States under a deportation or removal order.  This procedure is protected by law, which the president cannot change; only Congress can.  The approval of such applications to re-enter the United States is a matter left to the discretion of DHS.  To my knowledge it has not been made part of an executive order by the president or a memo by DHS.  I suspect that such “discretion” will be narrow.

A Final Word

Please understand that, if you do not report to the ICE appointment, you will become a fugitive, and you will have cut yourself off from future relief.

We know that this is a stressful and frightening time.  Our office will do everything that we can to assist you in your application, to explore a possible “asylum”-related claim, and to help you prepare for your appointment.