Part of the President’s executive actions announced on November 20, 2014 included a shift in enforcement policies which are set forth in detail in the memorandum, “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants.”
The memo issued by Department of Homeland Security (DHS) Secretary Jeh Johnson identifies three deportation priorities, namely, priority 1 or individuals who pose threats to “national security, public safety, and border security,” priority 2 or individuals convicted of three or more misdemeanor offenses or a “significant misdemeanor” and recent immigration violators, and priority 3 or individuals who have been issued a final order of removal on or after January 1, 2014.
The memo also provides guidance as to which cases meet the standards and further directs that limited enforcement resources be dedicated to the removal of aliens identified as priorities for enforcement.
It also requires DHS personnel to exercise prosecutorial discretion based on individual circumstances. Factors in exercising prosecutorial discretion 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.
When the President announced his enforcement priorities he explained, “That’s why over the past six years, deportations of criminals are up 80 percent. And that’s why we’re going to keep focusing enforcement resources on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids. We’ll prioritize, just like law enforcement does every day.”
With President Obama’s enforcement policies in place, the U.S. Immigration and Customs Enforcement (ICE) Office recently released FAQs in connection with enforcement priorities and prosecutorial discretion.
The FAQs provide information as to what a person should do if he is detained in ICE custody or placed in removal proceedings, and he believes that he is not an enforcement priority or otherwise merits an exercise of prosecutorial discretion.
If the person is in ICE custody, he should follow the detainee-staff communication procedures for the facility to contact their Deportation Officer. The procedure is found in the orientation handbook provided to detainees when they are booked into ICE custody.
To make a request for prosecutorial discretion, the person may also call the ICE Enforcement and Removal Operations (ERO) Detention Reporting and Information Line (DRIL), toll-free at 1(888)351-4024.
If the person is in removal proceedings, the person should submit his request for prosecutorial discretion in advance of immigration court hearings. The request should be submitted to the prosecutorial email box of the ICE Office of Chief Counsel that is handling his case before the Executive Office for Immigration Review (EOIR).
Also, ICE’s Office of the Principal Legal Advisor (OPLA) has issued guidance to its attorneys regarding persons who do not fall under the DHS enforcement priority. The OPLA attorneys are to review the cases at the earliest possible time.
Falling under priority 3 are persons whose prior removals were reinstated on or after January 1, 2014, or those whose voluntary departure expired on or after that date, or those whose appeals were denied after that date. The FAQs clarify that the ICE Field Office Director will evaluate these persons on a case-by-cases basis whether removal would serve important federal interests.
The FAQs also note that whether a driving under the influence (DUI) conviction is considered a significant misdemeanor falling under priority 2 will depend on the elements of applicable state law. The DUI conviction is a significant misdemeanor if the state statute of conviction (1) constitutes a misdemeanor as defined by federal law, (2) requires the operation of a motor vehicle and (3) requires as an element of the offense either a finding of impairment or a blood alcohol content of .08 or higher.
Also, even if a person with a DUI conviction falls under priority 2, senior-level officials can still make a determination that such person is not an enforcement priority when there are factors indicating that he is not a threat to national security, border security or public safety.
The FAQs further clarify, among others, that an adjudication of juvenile delinquency is not treated as a conviction and will not, on its own, make an alien an enforcement priority.