Policy Options to Respond to Border Surge of Illegal ImmigratiorL TERM Inga! 39 gm! 1. Increase Prosecution of Family Unit Parents: Instruct CBP and RI to work with to signi?cantly increase the prosecution of family unit parents when they are encountered at the border. The parents would be prosecuted for illegal entry [misdemeanor] or illegal reentry (felony) and the minors present with them would be placed In custody as UACIL Sincetiecausc the Erents would be criminally prosecuted, they would be placed in the custody of the US. Marshal to await trial. This would require close coordination with to ensure there are suf?cient prosecutors at the border and suf?cient U.S. Marshal's detention space. Because of the large number at violators, not all parents could be criminally prosecuted. However. the increase in prosecutions would he reported by the media and it would have suhstantial deterrent effect. A public announcement of the policy could be made before implementation. Status: GDP is currently executing this policy on 0 limited basis in the El Paso Sector implement: Secretarial memo needed {or further expansion 2 Separate Family Units: Announce that Diis is considering separating family units, placing the adults In adult detention. and biacing the minors under the age of 18 in the custody of HHS as unaccompanied alien children (UACs) because the minors will meet the definition of ?unaccompanied alien child," (1) has no Iawlul immigration status in the (2) has not attained the age oi 18: and has no parent or legal guardian in the or no parent or legal I. guardian In the US. is available to provide care and physical custody. See USC 279(gil2). This 1 will require close coordination With HHS, to ensure that sufficient capacity is available to detain the UACs. Advocacy groups are aware that this policy shift may occur and therefore are seeking to identify families who have been separated in order to bring a class action lawsuit. Hence, close 1 t1 coordination withpOl will also be required], 11 Status: Currently under consideration: dependent on policy determination implement: Direct DHS OPA to develop messaging options Once legal coordination between DHS. lit-IS. and is complete. begin soparatlng family units, as stated above. Sto tus: Currently under consideration,- dependent on policy determination implement: Secretarial memo needcdforful! implementation. I 3. liaise UAC De?nltiorc Direct USEIS to rescind a 2013 memo that prevents adiudicators from . .- mairing independent UAC determinations (there by allowing for the revdesignation of children who no longer meet the statutory UAC de?nition}; and allow ICE to rte-designate UACs as "accompanied alien juveniles? if/when til-ts releases them to a parent or legal guardian. The current policy memorandum requires USCIS to recognize a minor as a UN: based on the initial determination could worlt with ill-ls to ?1me repatriate the minors. 1? then It would take with the home countries. Commenced oudutobc mallow-mesh the Unitedsuteswho conspireor otherwise lac-lute the legal entry into the United SutnotUACc There was I lairly good Initiative worm-summer kgotcloutouro press. Notenough cases were accepted loruiminli room We need I concerted six month coordinction between DHS. DCU. and l-I-lSJ'he We oi [moron-rent needs totalo a zero tolerance policy to the tmuwir? of minors Into the United sum tail client, at course. but especially minors) Indecision memos. titatodecislon mmwasn't needed fasuch nlni?atin '1 because K?andoitahudy It wasiora summer. It noedstobeteod up for action My and should bemadeto 1 thosewhosnmle their 1? United States. and times-rhea": lepland can't be -. mddrouldbeammdandplaoodinmml '1 ms That initiative needs to have I mlior WA component. 51 should directltandrequ?ee HSI to dedicate oorolderohlo resourou to investigations ol such cases. Commenced With this separation Ida. we should consider] few things: -UM:uro generallynot subject to expositodrlmonl. So it an order of remoni hasn't been entered as of the time of their placement in Hits custody. it would seem that the mUACIwouid hethen phocdinto zaomnml mountings. with an be slow -Howover. phouthoparonts lnl'hocustodyoi' duos. mnthand dsenpiemthe copay complredtothe moo qua. -In the event that In Eli orderim'tpouihio?lor example. the para-rt passes I a'edhle fur screening titular-reels the Eli orderior the entire inn-?y urn?~00} would need to change its NTA ?ling policy to ensure that NT Commented [l-le: See comm above. It mold work A [Continental Ya . Commented [Horslmu comic! is. done and implommted on Monday. oar slows tudges to mabe independent determination as to when a minor LI I wound in mood for til-ls to hm the an? policy. [in term of notifyingdie other of indict: at non-UM: m, emu-innit? USCIS Jurisdiction of an I) who human asylum use by! former Ultwho?oltow Hm _with parents, also} made byan immigration officer when the minor is encountered. That determination is recognized throughout the minor?s immigration proceeding. despite the minor?s reuni?cation with parents. This affords the minors the protections under the Trafficking in Victims Protection Fteauthon'zation Act which allows them to avoid expedited removal,- to be placed in removal proceedings before an immigration judge; (3) to seek asylum before USCIS and have their removal proceedings closed pending adjudication; and renew their asylum claims before an Immigration judge ifit is not granted by {permitting them have two bites at the apple while all others who enter Illegally and claim asylum must proceed directly to immigration court). Status: [Decision memo arrived in the F0 on 12/14 -- Commented (Horst: this is one or decisions implement: Secretarial decision memo anyone wi i ever have to make There is absolutely no reason not to change this misgu decl policy. NEAR TERM (245 monthsi OPTIONS 4. MOU with HHS on Requirement: [or Releasing UACs: Complete the MDU between and HHS to conduct background checks on sponsors of UACs and subseouently place them into removal proceedings as appropriatel This EM resulti_n_a_d_e_ter_rent impact on "sponsors: @1991ij -- (mud [Han]: Simiartothe first commentobow involved with smuggling children Into the United States. However, there would be a short term In in?rm that thou-'6 be mnedtlmedmiw . . . . . . . . . woo! suggest re enlng sponsors for crimins prosecsition impact on HHS where sponsors may not take custody of their children in HHS facilities. feqt?l?lng' and" Wm? "m ?hemmr HHS to keep the UACs in custody longer. However, once the deterrent impact is seen on smuggling ham? 9.. or nu, the united sum. and those complicit in that process, in the long term there would likely be less children in HHS custody. Status: Pending with ?if and H?sfor clearance implement.- MOU between and . Commented [Hora]: If this could finalised and . soon, it wood have a tremendous deterrent 5. hepaoiation Assistance: Request that the State Department provide financial assistance to ?mm? 4 countries like Panama and Mexico, to fund efforts by those countries to interdict. detain, and remove aliens from the Northern Triangle who are transiting those countries en route to the United 513185 Status: implant? - Commented more]; i would also add working with :11. State Department to begin large-scale repatriation of HAS: 6. Eliminate Abuse: in the Sit Program. To prevent potential abuses in the program and save ?mwmu a? Wheelers? resourcesI DHS could bolster the vetting and adjudication aspects of the Sir program. DHS could review and improve the entire biometrics and security/vetting procedures for the SIJ population, including obtaining foreign criminal history Information for St] petitioners. Before addressing adjudication concerns, Diis should ensure the identity of Sti petitioners and carefully scrutinize the possibility of gang membership/affiliation. if a gang membership/affiliation issue ls identi?ed, USCIS adiudlcators should understand and implement the Referral to ICE process, speci?c to the SLI population. to ensure any potential threat to public safety ls referred to the proper component of ICE?which oftentimes is Homeland Security Investigations Separate from the procedures, review whether consent function can be used to deny a case involving gang membership or otherwise poses a threat to public safety or national security. OHS could also develop a formal process to encourage OHS components (2.3., trial attorneys, ICE or CBP officers, etc.) to report cases of suspected 51! program fraud to USCIS. For example. the process would provide that an ICE trial attorney who notices a child seeking Sii classi?cation attending Immigration court with two parents should report this factor to USCIS for further lnvestigatloni Status: implement: Currently under consideration U505 has authority to implement certain provisions; Secretarial decision memo mayI be needed for cross cutting decisions 7. hdiudication olCases in Immigration court. OHS could work with EOIR to adjudicate all cases on last in first out basis. This would have broad deterrent Impact on those seeking to enter the United States once they become aware that their cases would be adjudicated such that they would not have years with the ability to work in this 0.5. while their cases are pending. Simultaneously. USCIS can adjudicate the asylum cases they receive in order of last In first out also. if both processes were Implemented consistently, there would be substantial deterrent Impact. Shams: implement: Currently under considerations Secretarial memo and coordination with 001 needed for full implementatiarl LONG TERM months} OPTIONS a. Flores Regulations: Direct CBP, and USCIS to develop and draft regulations implementing the Flores Settlement Agreement and WPRA, in conjunction with and HHS. is working with OGC to develop and framework for these regulations. Status: A5 Duke signed decision memo on 9/25/17; :05 is currently working with OGC to establish a framework {or regulations. OGC will lead cross?componenl coordination with CBP. and U505 counsel?s office as all have equities. implement: New regulation Safe Country Agreement with Mexico: Authorize OHS components to request authority from the State Department to begin discussions with Mexico and Canada for the purpose of entering into a trllateral Safe Third Country Agreement with the parties. This will involve long-term negotiations with those countries. Status: AS Dulce signed decision memo on 12/5/17. On December 6, 2017, Acting Undersecretary for Policy Neaion sent a letter to the Department ofState requesting authority {Circular 1 75) to negotiate a trilateml safe third country agreement with Canada and Mexico. implement: Formal negotiations cannot start until State authorizes DHS to engage in negotiations. Such an agreement could rake years given the requirement that Mexico improve its capacity to accept and arh?udlcate asylum claims and improve its human rights situation. I 1 Commented UltThis is all good to do?and is smoothing tltatshouldhm been done all along. But it including having the Secretary witl'ihoid her statuary minorwu livingwitii one parent orlegal guardian.1hat's the largerissue indoors ens-ll basedon aleged abandonment by dad In El Salvadod. urchin: discusses this, but it?s ?tted in the bog-term category. 0H5 could change this in a nutter olweelrs [or to start tits-lg: in motion by issuing a NPRM. 30 days for comment. 30 days for review. mi. it does not need six months to change this. _l wouldn't accept that. Cemented Yes and no. Last in ?rst out sounds good In principle, but in win: the Dbama Administration urea and failed I: in 2014.001recen?v Wen-enters a ounprehensive caseload reduction plan last-in. onlyurorluilyou pace_and don't replace scheduled hearings with newly arrived cases. Happy to discuss hither a 10. implementation of lteturn to Territory Provisions of the consistent with Direction in the 11. 12. 13. Border E0: Begin negotiations with Mexico to implement INA which authorizes immigration of?cers to return aliens to the country from which they entered the pending a determination of their removability in removal proceedings. This would require the assent of Mexico because It would require aliens from the Northern Triangle to remain in Mexico until their and claims for relief have been decided by an immigration judge, which will likely hoid hearings at the ports of entry (port courts). There are litigation risks associated with this proposal, as It would implicate refugee treaties and international law. Status: Currently under consideration implement: Secretarial decision memol - Commented [?5112]: Just ?agging that this isn?t an option-It?s a legally binding requirement from the Fresident in section 1 of ED 137?. There Isn't anything Terminate the Flores Settlement Agreement irla legislation. In 1996 the INS entered into the Flores with" to consider mm than push Mum I Settlement agreement following a Supreme Court decision where the court upheld the would men that the Secretary inn tell PLCY and cam Constitutionality of a regulatory scheme relating to detention of minors and release only to parents. work with Stan and rush Mum herd-r than mr DHS has close relatives, or legal guardians. Since that time, litigation on this agreement has continued and ?Immw?b?h? ?mm a? mm? lniorrn the President immediate?y. multiple court decisions interpreting the agreement have handicapped DHS ability to detain children. Based on recent decisions DHS now has 20 days to place or release all children - accompanied or unaccompanied. Based on current processes, 20 days is not adequate time to place children. in addition, recent decisions place in jeopardy DHS's ability to utihze family detention. Hence, overwhelming majority at all alien children are subsequently released. Once released into the U.S. they await adjudication of their cases for years, can receive work authorization, and there is a less than 5% chance of removal. Status' Currently contained in President?s immigration Priorities package implement: Legislative change needed Expand ice Detention Facilities: Direct ICE to explore additional detention capacity by entering into contracts with detention vendors along the border. ICE's ability to enter into long-term detention contracts is constrained by funding. if appropriations are forthcoming. ICE will expand its detention capacityin areas along the border] . . - "i Commented I would suggest family detention 5 capacity should be the priority. but perhaps somewhat Status' Currently under consideration "mm? ?Win ?m ?mu? can handle family urdts on a shortaterrn basis?and that can implement: Secretarioi decision memo directing JCE, MGMT to develop options Guam?, 5, mama ?nd: ?My Mimic, Seek tegislatlve Fix for the WPRA in Victims Protection Reauthorlzation Act} and Special immigrant Juvenile Status (SUI: Under the TVPRA, minors who are not from Canada or Mexico (contiguous countries) cannot be voluntarily returned removed; are placed in removal proceedings before an Immigration judge; may to seek asylum before USCIS and have their removal proceedings clmed pending adiudication; and can renew their asylum dalms before an immigration judge tilt is not granted by USCIS (two bites at the apple). Slis are minor aliens who may adiust their status to lawful permanent residents when they are found to have been subiect to abuse. neglect, or abandonment under state law. This often requires the aliens to 14. 15. 16. petition a state court to become a ward of the state. The state juvenile court dockets are overwhelmed with these cases because of this program. The Asylum Reform and Border Protection Act of 2017 (Hit. 391) will relorm these abuses. Status . implement.- Currently contained in President?s immigration Priorities package legislative change needed interpretation of Special Immigrant Juvenile Visas. could consider revising its interpretation of the Special Immigrant Visa Statute to align with Congress? original intent of the program. This re: interpretation would allow the 511 program to better support those children who are truly abandoned and do not have a single parent available to care for them. USCIS is consulting with 06!: on the availability and ofsuch a revised interpretation, as well as the appropriate procedure for maldng the change - likely notice-and?cornment rulemaking. in light of a previously issue 2011 notice of proposed rulemaklng Status.- 066? and was Counsel's of?ce are working on this proposal for Secretarial Decision implement: Secretarial decision memo directing OGC and U505 to complete regulations. lime?amefar regulations would be 12 months. I Mandatory Detention of Arriving Aliens who Claim Credible Fear. DHS would detain arriving aliens in a manner consistent with statute such that they are detained for the duration ol the adjudication of their asylum claims. This would require rescission of the 2009 Morton memo which allows for parole of all such aliens contrary to statute. Rescisslon must occur following a decision in the Jennings vs. Rodriguez case as relied on the Morton memo in its arguments before this SCOTUS in October. A decision by the SCOTUS shoald be issued this summer. bits could rescind the memo thereafter. 5 Status implement: Awaiting implementation [post Supreme Court case) AS Duke signed decision memo on 10/10/17 Expand Expedited Removal (ER). The Secretary of Homeland Security has, in her sole and unrevlewable discretion, the authority to designate application of the expedited removal provisions of the INA to aliens who have not been admitted or paroled Into the United States for the two-year period immediately prior to the determination of their To date, this authority has only been exercised with respect to aliens encountered within 100 air miles of the border and 14 days of entry, and aliens who arrived in the United States by sea other than at a port of entry. Over the years. the Department has proceeded expanded ER, but has proceeded with caution owing to, among other considerations. potential constitutional challenges. liming of an ER expansion should be coordinated with the Department of Justice (DOJ) given pending litigation, including before the Supreme Court, concerning the due process rights of recent entrants. Status.- implement: Currently under consideration Secretarial decision menial Seo omega. Is no.5}- term item. th needs to be worked Into the short-term 1 items. at least for initiation of regulatory changes .Arnong other things. the Secretary should clet ermine that she wit a never consent to the [rent o! In 50 petition when a minor amid?. "ruminant?! tin-ow tam don't want to pre- ludn things, but ?couid? isn't the word i would choose Inn . Commented This, too. Is I legally riding not: rement from an tiut it won't have any effect on um. and Iiicelya more limited ellect on hmly units [but it could be helpful) We needto expand ER, but maybe liter separating hrnily units. pros-eon.? parents, and doing the other thinp ?rst.