MEMORANDUM FOR:

FROM:

SUBJECT:

February 20, 2017

Kevin McAleenan

Acting Commissioner

U.S. Customs and Border Protection

Thomas D. Homan

Acting Director

Si::cretary

U.S. Department of Homeland Security

Washington, DC 20528

Homeland

Security

U.S. Immigration and Customs Enforcement

Lori Scialabba

Acting Director

U.S. Citizenship and Immigration Services

Joseph B. Maher

Acting General Counsel

Dimple Shah

Acting Assistant Secretary for International Affairs

Chip Fulghum

Acting Undersecretary for Management

John Kelly

Secretary

Enforcement of the Immigration Laws to Serve the National Interest

This memorandum implements the Executive Order entitled “Enhancing Public Safety in

the Interior of the United States,” issued by the President on January 25, 2017. It constitutes

guidance for all Department personnel regarding the enforcement of the immigration laws of the

United States, and is applicable to the activities of U.S. Immigration and Customs Enforcement

(ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration

Services (USCIS). As such, it should inform enforcement and removal activities, detention

decisions, administrative litigation, budget requests and execution, and strategic planning.

www.dhs.gov

With the exception of 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,”1 all existing conflicting

directives, memoranda, or field guidance regarding the enforcement of our immigration laws and

priorities for removal are hereby immediately rescinded- to the extent of the conflict-including,

but not limited to, the November 20, 2014, memoranda entitled “Policies for the Apprehension,

Detention and Removal of Undocumented Immigrants,” and “Secure Communities.”

  1. The Department’s Enforcement Priorities

Congress has defined the Department’s role and responsibilities regarding the enforcement

of the immigration laws of the United States. Effective immediately, and consistent with Article

II, Section 3 of the United States Constitution and Section 3331 of Title 5, United States Code,

Department personnel shall faithfully execute the immigration laws of the United States against

all removable aliens.

Except as specifically noted above, the Department no longer will exempt classes or

categories of removable aliens from potential enforcement. In faithfully executing the

immigration laws, Department personnel should take enforcement actions in accordance with

applicable law. In order to achieve this goal, as noted below, I have directed ICE to hire 10,000

officers and agents expeditiously, subject to available resources, and to take enforcement actions

consistent with available resources. However, in order to maximize the benefit to public safety, to

stem unlawful migration and to prevent fraud and misrepresentation, Department personnel

should prioritize for removal those aliens described by Congress in Sections 212(a)(2), (a)(3), and

(a)(6)(C), 235(b) and (c), and 237(a)(2) and (4) of the Immigration and Nationality Act (INA).

Additionally, regardless of the basis of removability, Department personnel should

prioritize removable aliens who:

(I) 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;

(4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;

(5) have abused any program related to receipt of public benefits;

(6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or

(7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security. The Director of

ICE, the Commissioner of CBP, and the Director of USCIS may, as they determine is appropriate,

issue further guidance to allocate appropriate resources to prioritize enforcement activities within

these categories-for example, by prioritizing enforcement activities against removable aliens

who are convicted felons or who are involved in gang activity or drug trafficking.

1 The November 20, 2014, memorandum will be addressed in future guidance.

  1. Strengthening Programs to Facilitate the Efficient and Faithful Execution of the

Immigration Laws of the United States

Facilitating the efficient and faithful execution of the immigration laws of the United

States-and prioritizing the Department’s resources-requires the use of all available systems and

enforcement tools by Department personnel.

Through passage of the immigration laws, Congress established a comprehensive statutory

regime to remove aliens expeditiously from the United States in accordance with all applicable

due process of law. I determine that the faithful execution of our immigration laws is best

achieved by using all these statutory authorities to the greatest extent practicable. Accordingly,

Department personnel shall make full use of these authorities.

Criminal aliens have demonstrated their disregard for the rule of law and pose a threat to

persons residing in the United States. As such, criminal aliens are a priority for removal. The

Priority Enforcement Program failed to achieve its stated objectives, added an unnecessary layer

of uncertainty for the Department’s personnel, and hampered the Department’s enforcement of the

immigration laws in the interior of the United States. Effective immediately, the Priority

Enforcement Program is terminated and the Secure Communities Program shall be restored. To

protect our communities and better facilitate the identification, detention, and removal of criminal

aliens within constitutional and statutory parameters, the Department shall eliminate the existing

Forms I-247D, I-247N, and I-247X, and replace them with a new form to more effectively

communicate with recipient law enforcement agencies. However, until such forms are updated

they may be used as an interim measure to ensure that detainers may still be issued, as

appropriate.

ICE’s Criminal Alien Program is an effective tool to facilitate the removal of criminal

aliens from the United States, while also protecting our communities and conserving the

Department’s detention resources. Accordingly, ICE should devote available resources to

expanding the use of the Criminal Alien Program in any willing jurisdiction in the United States.

To the maximum extent possible, in coordination with the Executive Office for Immigration

Review (EOIR), removal proceedings shall be initiated against aliens incarcerated in federal,

state, and local correctional facilities under the Institutional Hearing and Removal Program

pursuant to section 238(a) of the INA, and administrative removal processes, such as those under

section 238(b) of the INA, shall be used in all eligible cases.

The INA § 287(g) Program has been a highly successful force multiplier that allows a

qualified state or local law enforcement officer to be designated as an “immigration officer” for

purposes of enforcing federal immigration law. Such officers have the authority to perform all law

enforcement functions specified in section 287(a) of the INA, including the authority to

investigate, identify, apprehend, arrest, detain, and conduct searches authorized under the INA,

under the direction and supervision of the Department.

There are currently 32 law enforcement agencies in 16 states participating in the 287(g)

Program. In previous years, there were significantly more law enforcement agencies participating

in the 287(g) Program. To the greatest extent practicable, the Director of ICE and Commissioner

of CBP shall expand the 287(g) Program to include all qualified law enforcement agencies that

request to participate and meet all program requirements. In furtherance of this direction and the

guidance memorandum, “Implementing the President’s Border Security and Immigration

Enforcement Improvements Policies” (Feb. 20, 2017), the Commissioner of CBP is authorized, in

addition to the Director ofICE, to accept State services and take other actions as appropriate to

carry out immigration enforcement pursuant to section 287(g) of the INA.

  1. Exercise of Prosecutorial Discretion

Unless otherwise directed, Department personnel may initiate enforcement actions against

removable aliens encountered during the performance of their official duties and should act

consistently with the President’s enforcement priorities identified in his Executive Order and any

further guidance issued pursuant to this memorandum. Department personnel have full authority

to arrest or apprehend an alien whom an immigration officer has probable cause to believe is in

violation of the immigration laws. They also have full authority to initiate removal proceedings

against any alien who is subject to removal under any provision of the INA, and to refer

appropriate cases for criminal prosecution. The Department shall prioritize aliens described in the

Department’s Enforcement Priorities (Section A) for arrest and removal. This is not intended to

remove the individual, case-by-case decisions of immigration officers.

The exercise of prosecutorial discretion with regard to any alien who is subject to arrest,

criminal prosecution, or removal in accordance with law shall be made on a case-by-case basis in

consultation with the head of the field office component, where appropriate, of CBP, ICE, or

USCIS that initiated or will initiate the enforcement action, regardless of which entity actually

files any applicable charging documents: CBP Chief Patrol Agent, CBP Director of Field

Operations, ICE Field Office Director, lCE Special Agent-in-Charge, or the USCIS Field Office

Director, Asylum Office Director or Service Center Director.

Except as specifically provided in this memorandum, prosecutorial discretion shall not be

exercised in a manner that exempts or excludes a specified class or category of aliens from

enforcement of the immigration laws. The General Counsel shall issue guidance consistent with

these principles to all attorneys involved in immigration proceedings.

  1. Establishing the Victims of Immigration Crime Engagement (VOICE) Office

Criminal aliens routinely victimize Americans and other legal residents. Often, these

victims are not provided adequate information about the offender, the offender’s immigration

status, or any enforcement action taken by ICE against the offender. Efforts by ICE to engage

these victims have been hampered by prior Department of Homeland Security (DHS) policy

extending certain Privacy Act protections to persons other than U.S. citizens and lawful

permanent residents, leaving victims feeling marginalized and without a voice. Accordingly, I am

establishing the Victims of Immigration Crime Engagement (VOICE) Office within the Office of

the Director of ICE, which will create a programmatic liaison between ICE and the known victims

of crimes committed by removable aliens. The liaison will facilitate engagement with the victims

and their families to ensure, to the extent permitted by law, that they are provided information

about the offender, including the offender’s immigration status and custody status, and that their

questions and concerns regarding immigration enforcement efforts are addressed.

To that end, I direct the Director of ICE to immediately reallocate any and all resources

that are currently used to advocate on behalf of illegal aliens (except as necessary to comply with

a judicial order) to the new VOICE Office, and to immediately terminate the provision of such

outreach or advocacy services to illegal aliens.

Nothing herein may be construed to authorize disclosures that are prohibited by law or

may relate to information that is Classified, Sensitive but Unclassified (SBU), Law Enforcement

Sensitive (LES), For Official Use Only (FOUO), or similarly designated information that may

relate to national security, law enforcement, or intelligence programs or operations, or disclosures

that are reasonably likely to cause harm to any person.

  1. Hiring Additional ICE Officers and Agents

To enforce the immigration laws effectively in the interior of the United States in

accordance with the President’s directives, additional ICE agents and officers are necessary. The

Director of ICE shall-while ensuring consistency in training and standards- take all appropriate

action to expeditiously hire 10,000 agents and officers, as well as additional operational and

mission support and legal staff necessary to hire and support their activities. Human Capital

leadership in CBP and ICE, in coordination with the Under Secretary for Management and the

Chief Human Capital Officer, shall develop hiring plans that balance growth and interagency

attrition by integrating workforce shaping and career paths for incumbents and new hires.

  1. Establishment of Programs to Collect Authorized Civil Fines and Penalties

As soon as practicable, the Director of ICE, the Commissioner of CBP, and the Director of

users shall issue guidance and promulgate regulations, where required by law, to ensure the

assessment and collection of all fines and penalties which the Department is authorized under the

law to assess and collect from aliens and from those who facilitate their unlawful presence in the

United States.

  1. Aligning the Department’s Privacy Policies With the Law

The Department will no longer afford Privacy Act rights and protections to persons who

are neither U.S. citizens nor lawful permanent residents. The DHS Privacy Office will rescind the

DHS Privacy Policy Guidance memorandum, dated January 7, 2009, which implemented the

OHS “mixed systems” policy of administratively treating all personal information contained in

DHS record systems as being subject to the Privacy Act regardless of the subject’s immigration

status. The DHS Privacy Office, with the assistance of the Office of the General Counsel, will

develop new guidance specifying the appropriate treatment of personal information DHS

maintains in its record systems.

  1. Collecting and Reporting Data on Alien Apprehensions and Releases

The collection of data regarding aliens apprehended by ICE and the disposition of their

cases will assist in the development of agency performance metrics and provide transparency in

the immigration enforcement mission. Accordingly, to the extent permitted by law, the Director of

ICE shall develop a standardized method of reporting statistical data regarding aliens apprehended

by ICE and, at the earliest practicable time, provide monthly reports of such data to the public

without charge.

The reporting method shall include uniform terminology and shall utilize a format that is

easily understandable by the public and a medium that can be readily accessed. At a minimum, in

addition to statistical information currently being publicly reported regarding apprehended aliens,

the following categories of information must be included: country of citizenship, convicted

criminals and the nature of their offenses, gang members, prior immigration violators, custody

status of aliens and, if released, the reason for release and location of their release, aliens ordered

removed, and aliens physically removed or returned.

The ICE Director shall also develop and provide a weekly report to the public, utilizing a

medium that can be readily accessed without charge, of non-Federal jurisdictions that release

aliens from their custody, notwithstanding that such aliens are subject to a detainer or similar

request for custody issued by ICE to that jurisdiction. In addition to other relevant information, to

the extent that such information is readily available, the report shall reflect the name of the

jurisdiction, the citizenship and immigration status of the alien, the arrest, charge, or conviction

for which each alien was in the custody of that jurisdiction, the date on which the ICE detainer or

similar request for custody was served on the jurisdiction by ICE, the date of the alien’s release

from the custody of that jurisdiction and the reason for the release, an explanation concerning why

the detainer or similar request for custody was not honored, and all arrests, charges, or convictions

occurring after the alien’ s release from the custody of that jurisdiction.

  1. No Private Right of Action

This document provides only internal DHS policy guidance, which may be modified,

rescinded, or superseded at any time without notice. This guidance is not intended to, does not,

and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at

law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are

placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.

In implementing these policies, I direct DHS Components to consult with legal counsel to

ensure compliance with all applicable laws, including the Administrative Procedure Act.