Acting Secretary McAleenan Announces a New Designation of Aliens Subject to Expedited Removal

"On July 23rd, Acting Secretary of Homeland Security Kevin K. McAleenan announced a new designation of aliens subject to expedited removal that applies to certain aliens encountered anywhere in the country within two years of illegal entry. Use of expedited removal pursuant to the new designation will help alleviate some of the burden and capacity issues currently faced by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) by allowing DHS to more quickly remove certain aliens encountered in the interior.

“The new designation adds one more tool for DHS—utilizing specific authority from Congress—to confront the ongoing security and humanitarian crisis on the Southwest border and throughout the country,” said Acting Secretary McAleenan. “We are past the breaking point and must take all appropriate action to enforce the law, along the U.S. borders and within the country’s interior. This designation makes it clear that if you have no legal right to be here, we will remove you.”

The Immigration and Nationality Act gives the Acting Secretary “sole and unreviewable discretion” to designate certain aliens as subject to expedited removal pursuant to a 1996 law. This authority has been used many times, including in a 2002 notice that applied the full scope of expedited removal to certain aliens encountered anywhere in the United States for up to two years after arrival by sea. The new designation harmonizes expedited removal for aliens arriving by land with the longstanding process for aliens arriving by sea, and applies to certain aliens encountered between 14 days and two years of entry within 100 miles of the border, or within two years of entry anywhere in the United States. The new designation is separate from, but complements, a 2004 designation that applies to aliens encountered within 14 days of entry and within 100 miles of the border..."
Aliens subject to removal

Alien Incarceration Report Fiscal Year 2018, Quarter 1

"This report includes data on known or suspected aliens under the custody of BOP or USMS, and limited data regarding immigration status of convicted aliens incarcerated in state prisons and local detention centers throughout the United States. Future reports will also provide information regarding immigration status of aliens incarcerated in state prisons and local detention centers.
Summary of Findings

A total of 57,820 known or suspected aliens were in DOJ custody for a range of offenses at the end of the first quarter of Fiscal Year 2018 (FY18) (see Figure 1). Of those, 34,834 were confirmed aliens with orders of removal, 15,536 were still under investigation by ICE to determine alienage, 4,410 were aliens who were illegally present and undergoing removal proceedings, and 2,871 were legally present and undergoing removal proceedings. A total of 169 aliens in DOJ custody had been granted relief or protection from removal.."
Alien incarceration

Overview of the Federal Government’s Power to Exclude Aliens

"The Supreme Court has determined that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches’ power to exclude aliens. First, nonresident aliens abroad cannot challenge exclusion decisions because they do not have constitutional or statutory rights with respect to entry. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only articulate a “facially legitimate and bona fide” justification to prevail against the citizen’s constitutional challenge..."
Alien exclusion

Pursuant to Executive Order on Public Safety, Department of Justice Releases Data on Incarcerated Aliens

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President Trump’s Executive Order on Public Safety in the Interior of the United States requires the Department of Justice to collect relevant data and provide quarterly reports on data collection efforts. The data in this release shows a significant prison population of incarcerated aliens.

“Illegal aliens who commit additional crimes in the United States are a threat to public safety and a burden on our criminal justice system,” said Attorney General Jeff Sessions. “This is why we must secure our borders through a wall and effective law enforcement, and we must strengthen cooperation between federal, state and local governments as we strive to fulfill our sacred duty of protecting and serving the American people.”

Below is a summary of data collected under Section 16 of the Order, which directs “the Secretary [of Homeland Security] and the Attorney General . . . to collect relevant data and provide quarterly reports” regarding the following subjects: (a) the immigration status of all aliens incarcerated under the supervision of the Bureau of Prisons; (b) the immigration status of all aliens incarcerated as federal pretrial detainees; and (c) the immigration status of all convicted aliens in state prisons and local detention centers throughout the United States..."

Incarcerated Aliens

Executive Authority to Exclude Aliens: In Brief

"The Immigration and Nationality Act (INA) provides that individual aliens outside the United States are “inadmissible”—or barred from admission to the country—on health, criminal, security, and other grounds set forth in the INA. However, the INA also grants the Executive several broader authorities that could be used to exclude certain individual aliens or classes of aliens for reasons that are not specifically prescribed in the INA.

Section 212(f) of the INA is arguably the broadest and best known of these authorities. It provides, in relevant part, that:
    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate..."

Executive Authority and aliens

Unauthorized Alien Students: Issues and “DREAM Act” Legislation

"The 109th and 110th Congresses considered, but did not enact, comprehensive immigration reform
legislation that included large-scale legalization programs for unauthorized aliens. In the aftermath of these unsuccessful efforts, some interested parties have urged the President and Congress to pursue more limited legislation to address the status of unauthorized alien students. Such legislation is commonly referred to as the “DREAM Act.”.."

CBP's Handling of Unaccompanied Alien Children
"The Department ofHomeland Security (DHS) Office ofInspector General (OIG) was
established by the Homeland Security Act of2002 (Public Law 107-296) by amendment
to the Inspector General Act of1978. This is one of a series ofaudit, inspection, and
special reports prepared as part of our oversight responsibilities to promote economy,
efficiency, and effectiveness within the department.

This report addresses Customs and Border Protection's compliance with the Flores
Settlement Agreement in the treatment ofunaccompanied alien children in its custody. It
is based on interviews with employees and officials ofrelevant agencies, direct
observations, and a review of applicable documents..."

Unauthorized Aliens in the United States
"The unauthorized alien (illegal alien) population in the United States is a key and controversial
immigration issue. In recent years, competing views on how to address this population have
proved to be a major obstacle to enacting comprehensive immigration reform legislation. The
unauthorized alien issue is likely to be a key challenge if, as the Senate Majority Leader and the
Speaker of the House have indicated, the 111th Congress takes up immigration reform legislation
this year.

It is unknown, at any point in time, how many unauthorized aliens are in the United States, what
countries they are from, when they came to the United States, where they are living, and what
their demographic, family, and other characteristics are. Demographers develop estimates about
unauthorized aliens using available survey data on the U.S. foreign-born population. These
estimates can help inform possible policy options to address the unauthorized alien population.
According to recent estimates by the Department of Homeland Security (DHS), approximately
10.8 million unauthorized aliens were living in the United States in January 2009. Using different
sources, the Pew Hispanic Center has estimated the March 2008 unauthorized resident population
at about 11.9 million..."

Treatment of Noncitizens in H.R. 3200
"This report outlines the treatment of noncitizens (aliens) under H.R. 3200, America’s Affordable
Health Choices Act of 2009. In particular, the report analyzes specific provisions in H.R. 3200,
and whether there are eligibility requirements for noncitizens in the provisions. Within the bill,
noncitizens are treated differently in several provisions. In 2008, there were approximately 37.3
million foreign-born persons in the United States. The foreign-born population was comprised of
approximately 15.1 million naturalized U.S. citizens and 22.2 million noncitizens.

H.R. 3200 includes an individual mandate to have health insurance, with tax penalties for
noncompliance. Individuals who do not maintain acceptable health insurance coverage for
themselves and their children would be required to pay an additional tax. Some individuals,
including nonresident aliens, would be exempt from the individual mandate. “Nonresident alien”
is a term under tax but not immigration law. For federal tax purposes, alien individuals are
classified as resident or nonresident aliens. In general, an individual is a nonresident alien unless he or she meets the qualifications under a residency test. Thus, legal permanent residents, and noncitizens and unauthorized aliens who qualify as resident aliens (i.e., meet the substantial
presence test), would be required under H.R. 3200 to have health insurance..."

Unauthorized Aliens’ Access to Federal Benefits: Policy and Issues
"Federal law bars aliens residing without authorization in the United States from
most federal benefits; however, there is a widely held perception that many
unauthorized aliens obtain such benefits. The degree to which unauthorized resident
aliens should be accorded certain rights and privileges as a result of their residence in the United States, along with the duties owed by such aliens given their presence, remains the subject of intense debate in Congress. This report focuses on the policy and legislative debate surrounding unauthorized aliens’ access to federal benefits."