By now, a lot of individuals know that President Obama’s directives of November 20, 2014 involving expanded Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) have been placed on hold due to a federal court order. The future of their implementation remains uncertain.
Yet, there was another important development on November 20, 2014: the Department of Homeland Security (“DHS”) Secretary Jeh Johnson issued a memorandum entitled “Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants” which provides new guidelines on enforcement priorities and prosecutorial discretion, and these guidelines are in full force and effect as of January 5, 2015.
The new enforcement priorities serve as a vital tool for determining which individuals Immigration and Customs Enforcement (ICE) will focus their efforts on removing, as well as providing direction to individuals seeking protection from removal through the exercise of prosecutorial discretion. While prosecutorial discretion is not a new concept, the November 20, 2014 memo has provided us with a clearer idea as to where federal interests lie with respect to the undocumented. Prosecutorial discretion involves a broad range of discretionary decisions: the decision to issue, serve, file, or cancel a Notice to Appear, whom to pick up, arrest, detain, or remove; whether to appeal, terminate or join in a motion to reopen; and whether to grant deferred action, parole, or a stay of removal. The new memo breaks ICE’s priorities into 3 categories with the first being the highest priority.
Priority 1 (threats to national security, border security, and public safety)
a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
b) aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
c) aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;
d) aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien’s immigration status; and
e) aliens convicted of an “aggravated felony,” as that term is defined in section 101(a)(43).
Priority 2 (misdemeanants and new immigration violators)
a) aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element was the alien’s immigration status, provided the offenses arise out of three separate incidents;
b) aliens convicted of a “significant misdemeanor,” which for these purposes is an offense of domestic violence; sexual abuse or exploitation; burglary; un lawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more;
c) aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014; and
d) aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.
Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014.
Most significantly, these 2014 guidelines, which replace and supersede a memorandum issued by ICE Director John Morton on June 17, 2011, represent a shift from the old in that an individual convicted of a simple DUI, an offense which historically presented no significant issues for immigration purposes, can be considered an enforcement priority.
Yet, following each of these priority categories, you will find an important caveat which indicates that even if you fall into a priority, you can be considered for prosecutorial discretion if “in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or users Service Center Director, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.” This exception leaves open a crack in the window of opportunity if your particular situation presents unique circumstances. If you have been arrested or detained by ICE, issued a Notice to Appear, or placed in Immigration Court, you should consult with an experienced immigration attorney.
“DHS must embrace the idea that a person with a criminal or immigration history may still be deserving of relief and explain in more detail how a person’s positive attributes interact with his or her adverse ones. In a context where the criminal code has grown exponentially, a congressional stalemate has emerged on immigration reform for yet another year, and the very premise of prosecutorial discretion is to intentionally take no action against people who have violated the law, it is infeasible for DHS to maintain a policy that uses a bright-line test to divide ‘enforcement priorities’ from those who are worthy of protection from removal.”
Immigration Attorneys, LLP focuses its practice in the area of immigration and nationality law. We represent clients in a wide variety of immigration case matters including family and employment-based work, deportation defense work, immigrant and non-immigrant visa work, consular processing overseas and naturalization matters.