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Who Will be Deported Under Obama’s Immigration Plan?

Part of the President’s immigration plan announced last November 20 is the shift in enforcement policies set forth in detail in the policy memorandum on apprehension, detention and removal of undocumented immigrants.

The memo issued by Department of Homeland Security Jeh Johnson focuses on the deportation of unauthorized immigrants who pose threats to “national security, public safety, and border security.” It serves as a guidance to agencies such as the Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services. (USCIS).

The memo identifies three deportation priorities. Priority 1 represents the highest priority for enforcement. They include individuals who are engaged in or suspected of terrorism or espionage or otherwise pose a danger to national security. Also included are individuals who pose as threats to public safety such as individuals convicted of felonies, aliens convicted of offenses defined as aggravated felonies under U.S. immigration laws, and gang related convictions or intentional participation in gang activities.

Individuals who are apprehended at the border or ports of entry while attempting to unlawfully enter the United States or recent border crossers are also top priority for enforcement.

Secondary priorities or Priority 2 identified in the memo are misdemeanants and new immigration violators. They include individuals with convictions for three or more misdemeanor offenses which arose out of three separate incidents. This does not include traffic offenses or local offenses for which an essential element was the alien’s immigration status.

Also identified as a second priority for enforcement are individuals with convicted of a “significant misdemeanor” defined for these purposes as being an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, or a conviction where the individual was sentence to a time in custody of 90 days or more. The sentence must involve time to be served in custody and does not include suspended sentence.

Recent border crossers or individuals who are apprehended anywhere in the United States after unlawfully entering or re-entering the U.S. and who cannot establish that they have been continuously physically present in the U.S. since January 1, 2014 are also listed as a second priority for enforcement.

Individuals who, in the judgment of an ICE Field Director, USCIS service center or district director, have significantly abused the visa or visa waiver programs are also included.

Priority 3 represents the lowest priority for enforcement. This is accorded to individuals who have been issued a final order of removal on or after January 1, 2014.

The memo does not prohibit or discourage the apprehension, detention, or removal of aliens not identified as priorities. However, it stressed that resources should be dedicated, to the greatest degree possible, to the removal of aliens identified as priorities for enforcement. It also states that anyone can be a target for removal if an ICE Field Office Director determines that removal would serve important federal interest.

Detention resources, as set forth in the memo, should be used to support enforcement priorities. Field office directors are instructed not to expend detention resources, absent extraordinary circumstances, on aliens who are known to be suffering from serious physical or mental illness, disabled, elderly, pregnant, nursing or primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest,.

The memo also lists a number of factors in exercising prosecutorial discretion in removing those listed as priorities for enforcement. Factors include extenuating circumstances involving the offense of conviction, extended length of time since the offense of conviction, length of time in the U.S., military service, status as a victim, compelling humanitarian factors such as poor health, among others.

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