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ICE Priorities for Apprehending and Deporting Aliens

The U.S. Immigration and Customs Enforcement (ICE) has released a memorandum identifying a set of priorities to be followed by its officers and directing them to follow these priorities in the apprehension, detention and deportation of undocumented immigrants.

First and highest priority goes to “aliens who pose a danger to national security or risk to public safety”. These aliens include those engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons or repeat offenders; aliens not younger than 16 years old who participated in organized criminal gangs; and aliens subject to criminal warrants.

Under the first priority, there is a catch-all category for aliens “who otherwise pose a serious risk to public safety” but the memo states that this provision should not be read broadly and will apply only when serious and articulable public safety issues exist.

The second priority pertains to recent illegal entrants such as those who committed violations at the border and ports of entry.

The third priority would be “aliens who are fugitives or otherwise obstruct immigration controls”. Included are those subject to a final order of removal and who abscond, fail to depart, or intentionally obstruct immigration controls.

The guidelines demonstrate the government’s policy to focus enforcement initiatives on the most serious offenders. According to the memo, the agency’s resources allow it to remove about 400,000 aliens only per year, which is less than 4% of the estimated U.S. illegal alien population. Accordingly, it should prioritize the use of its personnel and resources to ensure that the removals promote national security, public safety, and border security.

The memo instructs that, unless extraordinary circumstances exist or detention is mandated by law, detention resources must not be used on aliens with serious physical or mental illnesses, or those who are disabled, elderly, pregnant, nursing, or if they demonstrate that they are primary caretakers of children or an infirm person.

The memo also calls on ICE officials to exercise sound judgment and discretion when carrying out their enforcement functions and reminds them to give particular care when dealing aliens who are lawful permanent residents, juveniles, and immediate family members of U.S. citizens.

Aliens who are unlawfully present in the U.S. but who do not fall within the priorities may still be removed by ICE agents, although resources for removing them should not disrupt resources that should be spent on higher priority aliens.

Originally issued in June 2010, the memorandum, also referred to as the Morton Memo, was reissued recently with an additional provision stating that the guidelines and priorities do not create a private right. This means, for example, that you cannot raise the memo’s priorities as a matter of substantive or procedural right in immigration proceedings.

All in all, however, the Morton Memo still represents a welcome trend in immigration enforcement. By coming out with these guidelines, ICE has shown that it adopts a reasonable and common-sense approach and recognizes that not all aliens who are subject to apprehension, detention or removal, are equally dangerous. The guidelines also emphasize to ICE officials that they have “prosecutorial discretion” which they need to exercise in deciding against whom, when or how to pursue removal proceedings.

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