In 1996, Congress passed a law giving the federal government the power to declare an emergency relating to a “mass influx” of migrants. When that is enacted, the government can disburse funding to states and municipalities to deal with this influx. What does this mean in practice? Local police officers around the country could be enabled under the law to carry out the functions of a federal immigration officer.
On January 23, 2025, that law was invoked for the very first time where Acting Homeland Security Secretary Benjamine C. Huffman declared a “mass influx” affecting the United States for at least 60 days though it is unclear if that will be extended as of yet. In addition, we have no idea what the powers this unlocks actually are.
But the language of the memo from Secretary Huffman has sent some people running or even trying to see if they can leave on their own. “The January 23 memo changes that, finding that “an actual or imminent mass influx of aliens is arriving at the southern border of the United States.” While the memo acknowledges that current border crossings represent “a major reduction from the peak over the last four years,” Acting Secretary Huffman writes that numbers are “still too high,” and therefore it is fair to declare them a mass influx.” There are some posts on forums asking for advice on how to proceed where some are suggesting they hire a lawyer or others just telling them to leave and go back to where they come from, not realizing the implications of leaving and returning to countries they come from. From South America to Europe to the Middle East, a number of countries are either war zones, declaring their citizens as traitors if they leave, or in some cases, going home to be tortured for information just for leaving.
Part of the issue here is not just the implications for immigrants, but also the implications for public safety and community trust among Americans. There have been reports of Native Americans being picked up by ICE. Violating rights of Americans and immigrants seems to be the order of the day now and it is scaring both groups.
There are two other alarming memos we need to be aware of: the first is from the Department of Homeland Security (DHS) and the second is from the Department of Justice (DOJ).
A new Department of Homeland Security memo has significant implications for anyone who has entered on parole into the United States. This memorandum “authorizes DHS to pause, modify, or terminate, effective immediately, any parole program that is inconsistent with the memorandum – subject to certain conditions designed to ensure any such actions are lawful.”
This memo is being used to remove immigrants who are amenable to expedited removal. In practice this can include any ongoing removal proceedings or parole status. If an immigrant does not meet those conditions, and if they have been granted parole under a policy that has been paused or terminated, the DHS official can put them in removal proceedings.
The problem here is that the memo alleges that the screening within expedited removal is sufficient and that noncitizens who failed to apply for asylum within the one year deadline should be prioritized.
There have been a few recommendations for attorneys going forward: Prioritizing asylum applications while also considering other alternatives (including U Visas, SIJ, family petitions), appear with the client when possible, and discuss strategy around gathering evidence.
The overwhelming advice to immigrants seems to be the following: carry your attorney’s business card when you go out, carry any proof of pending applications or petitions, carry your next immigration hearing (if you have one), and carry your work permit or your lawful permanent resident card (if you have one).
The Department of Justice issued a memorandum for all department employees on January 21, 2025, telling them that cartels and transnational criminal organizations are a “scourge on society resulting in the unstable and unsafe border and huge flows of illegal immigration in violation of U.S. law.” While there are different definitions of “illegal” according to law (asylees, no status, and similar), not all illegal immigrants are criminals and this memorandum seems to imply such.
To this end the DOJ has implemented the following: “Specifically, in the absence of unusual facts, prosecutorial discretion at the Department of Justice and the U.S. Attorney’s Offices is bounded by the core principle that prosecutors should charge and pursue the most serious, readily provable offenses.”
They also ask that for Faithful Execution of the Immigration Laws that the Department take all steps necessary to protect the public and secure the American border by removing illegal aliens from the Country to be consistent with the Executive Order “Protecting The American People Against Invasion.” As mentioned earlier, the officers who are implementing these orders do not seem to discriminate between U.S. citizens, military veterans, Native Americans, or Puerto Ricans and immigrants.