New enforcement memorandum by DHS Secretary John Kelly


WHAT is happening? On January 27, 2017, the President signed the Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States” (Executive Order 13769) This Executive Order issued a 90-day travel ban on immigrants and non-immigrants from designated countries, a 120-day ban on U.S. refugee program, and an indefinite suspension of Syrian refugee admissions, among other things. On March 6, 2017, Executive Order 13769 was revoked and replaced by a new Executive Order entitled Executive Order Protecting the Nation from Foreign Terrorist Entry Into the United States.

Okay, so what? What does all this have to do with me? Many of those who read this article are of Southeast-Asian descent, and therefore the travel ban of January 27 and more recently March 6, 2017 had  and continue to have zero effect on their lives. However, with all the focus on the travel ban, non-citizens have missed important portions of the January 27 Executive Order that do have significant effect to their situations.

The New Enforcement Memorandum of February 20, 2017. On February 20, 2017, the Department of Homeland Security Secretary John Kelly issued a Memorandum to implement the Executive Order 13769. Per this memorandum, “all existing conflicting directives, memoranda, or field guidance regarding the enforcement of immigration laws and priorities for removal are hereby immediately rescinded, including but not limited to, the November 20, 2014 memoranda entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,” and “Secure Communities.”’ The memo excludes the June 15, 2012 memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” more popularly known as DACA.

Pursuant to this new memorandum of the DHS’s enforcement priorities, “the Department will no longer exempt classes or categories of removable aliens from potential enforcement.” Non-citizen aliens (including lawful permanent residents or “green card” holders) are removable if they:

• Have been convicted of any criminal offense;

• Have been charged with any criminal offense that has not been resolved;

• Have committed acts which constitute a chargeable criminal offense;

• Have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;

• Have abused any program related to receipt of public benefits;

• Are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or

• In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

I have previously written about criminal bars to DACA and the negative consequences of even a misdemeanor conviction. It has never been more important for non-citizens, including long-time lawful permanent residents, to understand what the new enforcement memorandum means for them. “Just a misdemeanor” in state criminal court will make a non-citizen deportable. Just being charged, and not even convicted, will make a non-citizen deportable. Commission of acts – even if you have not been officially charged, arraigned, or convicted, will make you deportable. Therefore, if you are a non-citizen and you find yourself in criminal court, even for “just a misdemeanor” it is important to tell your criminal attorney or the public defender that you are not a U.S. citizen, and that you cannot do a run-of-the-mill plea bargain without first considering how it will affect your legal status in the United States. More importantly, it is important to consult with an experienced, and licensed immigration attorney who has significant experience in deportation, as not all immigration attorneys have the same knowledge and expertise.

If you are reading this article, chances are you yourself are a non-citizen. If you or anyone you know is a non-citizen undocumented immigrant, or non-citizen lawful permanent resident and you fall in to any of the categories above, it is important to consult with an experienced and licensed immigration attorney who will be able to guide you through the options available to you under evolving U.S. immigration laws.

Google is no substitute for a licensed, experienced, immigration attorney. Know your rights, and know your options, and be wary of notarios and those who are not licensed to practice law.

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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; lbaculi@ctvattys.com. For general information visit www.chuatinsayvega.com.

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