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  • Writer's pictureSubhan Tariq, Esq


In the wake of a new set of Executive Orders from the administration, the Department of Homeland Security (DHS) will no longer be utilizing the full range of prosecutorial discretion that they had been under the Obama administration.

Under the Obama Administration, DHS was directed to focus their enforcement procedures on criminal immigrants primarily or immigrants with multiple immigration violations. Non-criminal immigrants who had only committed an immigration violation were largely exempted from removal prosecution or for being detained by DHS agents. Elements of the DHS also had wide discretion as to whether to prosecute immigrants who lacked criminal violations.

Under the most recent executive orders from the current administration, DHS is directed to prosecute and seek to remove all undocumented immigrants, even those without criminal or multiple immigration violations. DHS is still required by law to prioritize criminal immigrants over non-criminal immigrants in the event of a lack of resources or if there are mitigating factors; however, non-criminal immigrants are no longer to be assumed to be appropriate candidates for an exercise of prosecutorial discretion without specific mitigating factors.

The orders also create a focus on expediting the removal process for immigrants found removable by the immigration court and in making asylum claims more difficult to initially apply for at the border. There is also a stated intention to prosecute anyone who “facilitates” smuggling across the border and a stated intention to make it more difficult for unaccompanied minors to be released into the custody of guardians here in the United States or to apply for relief from immigration prosecution. The orders also direct DHS to grant parole into the United States less frequently and to detain or refuse entry to individuals at the border more frequently.

In order to facilitate these new rules, the order also authorizes the hiring of 10,000 additional ICE agents, hiring additional immigration judges as well as the creation of a new office which will focus on immigrant crime. The order also describes an intention to set up new programs which would levy fines or other financial penalties on undocumented immigrants but does not indicate any actual policy or law which would enable this. The order also indicates the intention to create a public database where undocumented immigrants can be reported on and where members of the public could review data about immigration enforcement and who had been accused of an immigration offense. Again the details of this initiative are unclear and it will likely require further legislative action to be actually implemented.

These actions and statements would seem to indicate that the administration is expecting to greatly ramp up immigration detention and deportation proceedings over the course of the next year. However, the lack of specificity of the order, particularly in where these additional agents would be utilized and paid for, also raises the question about if this order would actually result in additional removal proceedings or if it will merely further overload the immigration courts and ICE detention facilities.

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