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Immigration and Customs Enforcement
New Report Analyzes Fatal Flaws of U.S. Border-Enforcement Strategy
06 days ago
The federal government’s current approach to border security is dangerously misguided. Border-enforcement resources are directed at what gets smuggled across the border—people, drugs, guns, money—rather than who is doing the smuggling; namely, the transnational criminal organizations based in Mexico which are commonly referred to as the “cartels.” If the U.S. government wants to get serious about enhancing border security, it will begin to systematically dismantle the cartels rather than just seizing the unauthorized immigrants and the contraband they smuggle and arresting a few low-level cartel operatives in the process.
This is the central message of a new report by former Arizona Attorney General Terry Goddard, entitled How to Fix a Broken Border: Disrupting Smuggling at Its Source. The report starts off by noting that when it comes to border security, “the prevailing assumption is that all we need to stop illegal crossings of drugs, people, cash, and guns are more Border Patrol agents, more National Guard troops, and more surveillance and sensors to cover the hundreds of rugged miles between lawful ports of entry.” Indeed, this has been the rationale for building 650 miles of border fencing along the U.S.-Mexico border, and for the massive expansion of the Border Patrol since the early 1990s. The Border Patrol now numbers 21,000 agents and has a high-tech arsenal that includes unmanned aerial drones.
Yet, in spite of all the fencing, agents, and technology, cross-border smuggling continues unabated. The reason for this is twofold. First, the cartels that do the smuggling are, as Goddard puts it, “superbly organized, technologically adept, and very well funded.” When it comes to fencing in particular, they “have the capacity to go over, under, around, and even through virtually any physical barrier.” The U.S. Government Accountability Office (GAO) reports that “during fiscal year 2010, there were 4,037 documented and repaired breaches” of border fencing.
Second, the U.S. government is focused on seizing different kinds of contraband—and assigns different kinds to different government agencies: Immigration and Customs Enforcement (ICE) gets unauthorized immigrants, the Drug Enforcement Agency (DEA) gets illegal drugs, and Alcohol, Tobacco, and Firearms (ATF) gets illegal guns. Missing from this division of labor is a coordinated assault on the cartels that do the smuggling. This is a losing proposition. As Goddard emphasizes:
Going after the contraband product or smuggled people, as this country has been doing for years, is destined to be an endless chase. The cartels will just regroup and continue operations, learning from their mistakes. If we are serious about stopping the threat on the border, we have to dismantle the criminal organizations that carry the contraband and take away the tools that make them so effective.
What is needed, says Goddard, is a border-defense strategy that is “intelligence driven and multi-level.” It must target both the cartel leadership and the many subcontractors who work for them. And it must target cartel organization from every possible angle:
Whatever makes the cartel organizations strong must be attacked. Their communication systems must be cracked, jammed, and shut down. Their leaders must be identified, arrested, and incarcerated. Most important, the illegal flow of funds across the border into cartel pockets must be disrupted, interrupted, and stopped.
Goddard is incredulous that “this country has hardly lifted a finger to stop over $40 billion a year in cartel funds pouring across the border.” He calls for the Department of the Treasury to become “a full participant in the effort to stop the cartels by cutting off the illegal transfer of funds” that occurs through banks, wire-transfer companies, import-export businesses, and businesses that issue “stored value instruments.” As he points out, the “physical border is irrelevant to the flow of money; it is the virtual border in cyberspace and currency exchanges that must be defended.”
The current border-enforcement strategy is designed to fail. Goddard writes that “pouring even more money and manpower into enforcement on the border will have little impact as long as the criminal organizations remain intact.” He concludes that “only when the smuggling organizations are dismembered will border defense efforts be equal to the threat. Only then can it truthfully be said that the border is ‘secure.’”
Photo by ICE.gov.
Holding the Obama Administration to Its Word on Prosecutorial Discretion
02 weeks ago
Signs that ICE is invested in the “Morton Memo” and subsequent guidance on prosecutorial discretion are beginning to show up at both ends of the legal spectrum. At one end, the New York Times reported yesterday that approximately one in six cases reviewed in a pilot program at the Denver immigration court may be indefinitely suspended. At the other end, a government attorney invoked ICE’s prosecutorial discretion policy during an argument this week before the Supreme Court. While both instances offer encouraging signs, they also demonstrate that the strength of the policy depends not on what’s been said in the past, but on how it will be implemented in the future.
In yesterday’s New York Times story, Corina Almeida, the senior ICE prosecutor in Denver, cogently explained why taking low-priority cases off immigration judges’ dockets provides systemic advantages for the system as a whole:
These cases free up others to move to the front of the line: the egregious offenders, those who thumb their noses at the system or commit fraud … If the only thing they did is enter illegally, they have established ties, they have U.S. citizen children, they are productive members of society, they have no criminal records, it makes prosecutors feel good when you know you can do something.
Meanwhile, back in Washington, the Supreme Court considered the cases of two of lawful permanent residents (LPRs) who entered the country as children but were placed in removal proceedings following subsequent criminal convictions. Both asked immigration judges to cancel their deportation orders, but each was found ineligible for such relief under federal immigration law—which requires applicants to be an LPR for at least five years and to have lived in the United States for at least seven years. To meet the eligibility requirements, the children argued that they should receive credit for time their parents spent in the United States—or in legal terms, that their parent’s status or residence be “imputed” to them for purposes of the five- and seven-year requirements.
Midway through the argument, Justice Sonia Sotomayor asked the government’s attorney, Leondra Kruger, why “imputation” should be forbidden if the purpose of the law was to promote family unity and give LPRs with extensive histories in the United States a second chance. Kruger’s initial response was, in effect, that the law is the law, regardless of the humanitarian consequences that may result. But perhaps sensing some Justices’ discomfort with her response, Kruger followed up by saying:
[I]mmigration officials have the discretion not to bring removal proceedings in the first place, to terminate removal proceedings once they have begun, to defer action on the execution of a removal order. And current Immigration and Customs Enforcement (ICE) guidance makes clear that a minor receives particular consideration within the totality of the circumstances in determining whether or not prosecutorial discretion is something that should be exercised.
In other words, Kruger told the Court that it should not matter whether LPRs who entered the United States as children are unable to seek cancellation, because in sympathetic cases ICE can decline to seek deportation in the first place.
Of course, while the government’s assertion may be legally correct, it rests on the assumption that ICE will actually exercise prosecutorial discretion in a meaningful manner. While the initial report from the Denver pilot program is encouraging, the real question is how the prosecutorial discretion policy will be implemented on a national basis. As this week’s events demonstrate, the government cannot have it both ways. If it wants to trumpet prosecutorial discretion at the Supreme Court, it cannot fail to implement the policy in the field.
Photo by Dmitriy Shironosov.
ICE Releases Memo Outlining Justification for Making Secure Communities Mandatory
03 weeks ago
An October 2010 ICE memo from ICE Deputy Legal Advisor Riah Ramlogan to ICE Assistant Deputy Director Beth Gibson has finally been made public after a protracted legal battle. The nine page memo, obtained through Freedom of Information Act (FOIA) litigation, presents ICE’s legal arguments for making the Secure Communities Program mandatory for all jurisdictions in 2013. This memo overrides and contradicts an earlier ICE memo that argued that S-Comm was not mandatory.
This is the latest chapter in a lengthy debate over whether Secure Communities is mandatory or voluntary. Initially ICE claimed that the program—which runs the fingerprints of individuals booked in local jails through federal databases—was voluntary. However, when states attempted to opt out of the program, they were told that they could not. In August 2011, ICE terminated its Memoranda of Agreement (MOAs) with the states, stating that the MOAs were not necessary and that ICE would continue to expand the program unilaterally. Secretary of Homeland Security Janet Napolitano also clarified that all jurisdictions would be required to participate in Secure Communities by 2013.
For years, immigrant advocates have asked ICE on what legal basis they base making Secure Communities mandatory. The “mandatory memo” now points to three statutes that give the Attorney General the authority to collect and exchange criminal information, establish a cooperative framework between the states and federal government to exchange criminal information, and make the DHS and FBI databases interoperable. The memo also recalls a FY2008 bill that appropriated $200 million for ICE to “improve and modernize efforts to identify aliens convicted of a crime, sentenced to imprisonment, and who may be deportable, and remove them from the U.S. once they are judged deportable…”
None of these statutes, however, mention Secure Communities or create a mandatory program. As UncoverTheTruth.org points out, “the statutes predate Secure Communities by between six and sixty years” making this a “post-hoc justification for a policy” ICE is eager to implement.
The earlier memo voiced concerns that states may raise Tenth Amendment arguments and that a court may find that ICE cannot compel local law enforcement agencies to participate in Secure Communities. The new memo reaches the opposite conclusion, finding that “compelling participation in Secure Communities in 2013 does not raise constitutional concerns.”
It is obvious that ICE has put much time and energy into finding a legal justification for proceeding with their plans to implement Secure Communities in all jurisdictions, regardless of the desires of local jurisdictions. This justification completely ignores the many concerns about the program, including the concerns of the DHS-appointed Secure Communities Task Force, which have still not been addressed. The ultimate question is not whether ICE can make the program mandatory, but should it be mandatory.
Secure Communities has resulted in the deportation of thousands of immigrants with minor criminal records or no criminal records at all; it has jeopardized public safety by eroding community trust in the police; it has resulted in civil rights violations. Expansion of Secure Communities must be seriously re-considered.
Photo by miss mass.
ICE, Local Governments Make Important Changes to Immigration Detainer Policies
04 weeks ago
Despite the ongoing controversy surrounding ICE’s Secure Communities program, there have been some recent positive developments on the issue of immigration detainers—a tool used by ICE and other DHS officials to identify potentially deportable individuals who are housed in jails or prisons nationwide. Local governments in New York, Illinois, California and now Washington D.C. have taken steps to limit their compliance with ICE detainers. Additionally, ICE has recently issued a new detainer form which provides more clarity to local law enforcement agencies.
Due to the expansion of the Secure Communities program, the use of immigration detainers has increased dramatically over the past several years. Detainers are official requests from ICE to local law enforcement agencies that ask them to notify ICE before releasing an individual from custody. Once an individual is identified through the Secure Communities program, ICE may issue a detainer, temporarily detaining an individual so that ICE has the option to take custody.
Immigrant advocates, however, have documented many problems with the use of detainers and numerous lawsuits have been brought forth on behalf of individuals illegally held for long periods of time under detainers. Some cities have been forced to pay thousands of dollars in damages to U.S. citizens illegally held under detainers, and individuals held up to 3 months—far more than the statutory maximum of 48 hours.
Over the last year, New York City; Cook County, IL; and San Francisco, Sonoma, and Santa Clara Counties, CA have announced they will limit their compliance with detainers by proscribing conditions that must be met in order for detainers to be honored. Most recently, city council members in Washington, D.C. introduced Bill 19-585 which would limit non-criminal hold periods to 24 hours, require federal reimbursement for the District’s costs, and only permit the detainment of individuals who have been convicted of dangerous and violent crimes. A January 6 hearing on the bill brought out dozens of city residents and activists in support of the bill.
Additionally, in response to complaints about the lack of clarity around detainers, ICE issued a new detainer form (Form I-237) last month which clarifies that:
- Detainers are a request and are not mandatory.
- Emphasizes that the LEA cannot hold the person for longer than the 48 hour maximum and that the detainer should not impact or prejudice the individual’s conditions of detention.
- Allows ICE to make the detainer dependant on the individual’s conviction rather than an arrest. ICE also requires that individuals receive notice of a detainer issued against them.
- Provides instructions for individuals who have a civil rights complaint regarding the issuance of the detainer.
ICE also announced a new 24/7 toll-free hotline – 855-448-6903 – that individuals being held under a detainer can call if they believe they are U.S. citizens or victims of a crime.
While these changes do not resolve all of the problems regarding immigration detainer policies, they are a welcomed change to lack of clarity that has clouded the issue for too long.
Photo by Lou Oates.
ICE’s Mess in Massachusetts
02 months ago
Editor’s Note: This is the third of five blogs in a series focusing on firsthand experiences with Secure Communities from across the country.
Over the last year, Immigration and Customs Enforcement (ICE) has played out a miniature version of its catastrophic national strategy on Secure Communities in my home state of Massachusetts. Complete with misrepresentations, betrayals, last-minute visits by heads of departments, heated letters and a barrage of media stories, ICE’s plan to roll out this program in the Bay State has been nothing short of a disaster.
In Massachusetts, ICE proved to be an untrustworthy partner and has lost any legitimacy it may once have had. Here are the misrepresentations ICE told to our state:
- In 2006, ICE convinced the city of Boston to sign up as an S-Comm pilot project. It turns out that when ICE said “pilot” it meant “forever.” When Mayor Menino raised concerns and threatened to withdraw from the program, ICE said that was no longer a possibility. As the Mayor put it, “Boston took part in Secure Communities as a pilot project, with the understanding that only the most serious criminals would be affected and the belief that our feedback would lead to improvements in the program. It would be a further violation of the public trust if instead Secure Communities proves to be a knot that the federal government will not untie.’’
- When community groups started asking questions about Boston’s participation, ICE gave the city a set of statistics that purportedly proved that most of the people arrested and deported under the program were criminals. As it turns out, that was false. When a court ordered statistics to be released, they showed that more than half of those picked up in Boston had no criminal convictions whatsoever.
- ICE negotiated with Governor Patrick to sign on to a Memorandum of Understanding voluntarily entering the state into the program. When a huge community backlash led the Governor to reject the offer, ICE turned around and said it did not need the MOU after all, and would just implement the program with or without the state’s approval.
- ICE told Congress and the cities and towns it sold the program to that it was about safety. So far, the program has resulted in the deportation of over 140,000 people. Just over a quarter of those are offenders with serious criminal records. And when people on the ground, such as ICE’s own task force, raised legitimate concerns that the program is bad for public safety, ICE did nothing to change or end the program.
- ICE’s latest response is to ensure everyone that its agents will use “prosecutorial discretion” to deport only those high priority cases. But once again, this is not happening. A recent report by the immigration lawyers’ bar found that “most ICE offices have not changed their practices since the issuance of these new directives.” In the Boston area, immigration lawyers are reporting that even the most sympathetic cases are being denied discretion and going forward to deportation as planned.
If ICE won’t make a change, it’s time for Congress to take control back from this rogue agency. Millions of our taxpayer dollars are going to fund a program that, in the end, serves only to hurt communities. In Massachusetts, we will continue to fight this divisive and damaging program until the very end and we stand behind the other cities and states that do the same.
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House Subcommittee Hearing Underscores Problems with Secure Communities Program
02 months ago
Congressman Steve King (R-IA), Subcommittee on Immigration Policy & Enforcement.
Today, the House Immigration Subcommittee held a hearing on the Secure Communities program (S-Comm)—an enforcement program that has been rife with controversy since its inception in 2008. Today’s hearing featured statements from a variety of witnesses and members of Congress which further underscored the problems inherent with the program and immigration enforcement in general. S-Comm is currently active in more than 1,700 jurisdictions and is on target to be nationwide by 2013.
Gary Mead of ICE described the current status of S-Comm and the reforms that ICE has made to the program in light of concerns that have been raised. Mead touted the record number of deportations in FY2011, and reported that ICE has deported more than 114,000 immigrants identified through S-Comm.
Julie Myers Wood, former Assistant Secretary of ICE, acknowledged that ICE’s resources are limited and prioritization is necessary. She also acknowledged that S-Comm would result in more identifications that ICE could handle and suggested that ICE improve it’s efficiency so more immigrants identified through S-Comm can be processed for potential deportation. If ICE does not have enough detention space, Wood continued, alternatives to detention and monitoring should be used so that ICE does not have to release anyone. Furthermore, Wood argued that expanded use of stipulated removal—in which the immigrant agrees to be deported—and Rapid Repatriation—through which immigrants can obtain early release from jail if they agree to be deported—can reduce the burden on the court process.
Sheriff Sam Page of Rockingham County, NC—who has relatively limited experience with S-Comm—said that he and other sheriffs are seeing an increase in illegal alien crime activity. He claimed that S-Comm works well in his community, does not cost his agency anything to implement and that the “program and protocol for ‘Secure Communities’ is reasonably simple.” He explained:
If it is determined that the arrestee was not born in the United States, the person is fingerprinted…and the prints are then compared against the Federal and Immigration and DHS print database. Then our trained booking officers notify ICE personnel whether there is a print match. Even if there’s not a match, we arrange an interview with an ICE agent and the arrestee.
This description of his agency’s process is not consistent with how S-Comm works, raising concerns about whether he and other local law enforcement agencies are properly implementing the program.
Finally, Art Venegas, former Chief of Police of Sacramento, testified about the challenges that S-Comm creates for community policing and community safety. When the program is activated, immigrants are fearful of contact with the police and crimes go unreported. Venegas explained how immigrants who are arrested and identified through S-Comm but then are not convicted of any crime are still deported. Venegas continued:
It seems we are agreeing to turn the long-stand principle of “innocent until proven guilty” on its head for certain groups of people. If you are an immigrant, and you are charged with a serious offense, you are “guilty until proven innocent” and you will be referred for deportation. As an immigrant myself, and as an American, I cannot support that differing standard.
Democratic members took the opportunity to point out the continuing concerns over S-Comm and its impact on racial profiling, community safety, and victims and witnesses (Gary Mead claimed ICE has never deported a victim of domestic violence.)
Republicans pushed their agenda, complaining that ICE had not provided information that had been requested and insisting that 300,000 “criminal aliens” had been identified by S-Comm and ignored or released by ICE. The source of the 300,000 number remains unclear. Representative Steve King questioned how Chief Venegas had arrived in the U.S. as an immigrant and repeatedly asked whether racial profiling was prohibited by federal statute. When Venegas mentioned the Civil Rights Act, King claimed that those who wrote the Civil Rights Act didn’t know what racial profiling was.
In summary, there was much grandstanding and talking past one another and very little constructive debate over the controversial program.
Photo by Gage Skidmore.
Detain First, Investigate Later: How U.S. Citizens Are Unlawfully Detained Under S-Comm
02 months ago
Editor’s Note: This is the second of five blogs in a series focusing on firsthand experiences with Secure Communities from across the country.
Detain first, investigate later — that is Immigration and Customs Enforcement’s (ICE) mantra when it comes to its Secure Communities (“S-Comm”) program, a program designed to immediately ensnare any immigrant in the deportation pipeline the moment they come into contact with the criminal justice system.
Under S-Comm, the fingerprints of every person arrested by the police are shared with ICE at the moment they are booked into police custody. Without investigating the person’s immigration status, ICE immediately sends an “immigration detainer” or a request back to the police if they want the person to continue to be detained for immigration purposes. Detain first, investigate later.
See a problem with this? Not only does it violate the Fourth Amendment’s basic prohibition against detaining a person without probable cause to do so, but it commonly ensnares the wrong people, including people who are not even immigrants, but United States citizens, causing them to be unlawfully detained.
Take, for example, the case of Antonio Montejano, a U.S. citizen who was born in Los Angeles. A few weeks ago, Antonio was arrested by the Santa Monica Police Department for shoplifting. He accidentally left a Sears store without paying for the candy his young children had taken and eaten while in the store. One of his children also placed a $10 perfume bottle in a bag that had already been paid for.
When security guards stopped Antonio, accusing him of stealing the perfume, Antonio explained that it was an honest mistake and that he would be happy to pay for it. After a long back and forth with the security guards, the police were called and Antonio was taken into custody.
Antonio normally would have been released from Santa Monica Police custody within hours of being booked into their custody. But ICE interfered through S-Comm. When Antonio was booked, ICE immediately placed an “immigration detainer” on him, instructing the local authorities to detain him until they could pick him up.
Antonio spent four haunting and unwarranted days in jail on the immigration detainer. For two of those days, Antonio was detained in a temporary holding cell in Los Angeles County Sheriff’s custody that only had chairs, no beds. The authorities forced him to sleep on the hard floor, depriving him of any mattress or blankets, a practice the federal courts have long denounced as flagrantly unconstitutional. Antonio repeatedly protested to jail authorities that he was a U.S. citizen. But only after the ACLU of Southern California contacted a senior ICE official four days later, did they finally agree to lift the detainer.
Romy Campos, a 19-year-old U.S. citizen born in Florida and a dual citizen with Spain, had a nearly identical experience, also a few weeks ago. Her arrest for shoplifting at a mall in Torrance, Calif., also resulted in ICE placing an immigration detainer on her and detaining her for four days in jail. For days, her attorney and family members sent her birth certificate to ICE officials pleading that they lift the erroneous detainer to no avail. Again, the detainer was only lifted once the ACLU of Southern California contacted a senior ICE official.
ICE, quite clearly, has no business arresting and detaining American citizens. But as described in a recent report by the Warren Institute at University of California — Berkeley, they do so over and over again through the fundamentally-flawed S-Comm program. (ICE’s own data in the first year of S-Comm activation revealed that five percent of persons identified by S-Comm were in fact U.S. citizens.) And they do so by enlisting the unwitting participation of local jail authorities in these unconstitutional practices.
The costs and consequences of S-Comm’s detain first, investigate later are borne out every day in the jails and police stations across the country where non-deportable citizens and noncitizens suffer needless detention, while they beg for ICE to finally investigate their cases so that they may be released from jail.
Sharing Prints: DOJ and FBI Must Take Responsibility for S-Comm Failures, Too
02 months ago
It’s long past time for the Department of Justice (DOJ) to stop passing the buck on Secure Communities (S-Comm) and take responsibility for the controversial immigration enforcement program. S-Comm has caused unprecedented harms to public safety and community trust in the police: DOJ must urgently take action to end this disastrous initiative.
S-Comm has been implemented by Immigration and Customs Enforcement (ICE) in 1,659 jurisdictions across the country, disregarding the opposition of numerous states and localities. Under S-Comm, the FBI shares the fingerprints of every arrested person with the Department of Homeland Security (DHS) — despite the fact that sharing these prints contravenes agreements made between the states and the FBI.
The FBI publicly acknowledges that it doesn’t own the fingerprints: “They’re owned by the states, by the 18,000 law enforcement agencies across this country. They submit them to us and allow us to use them, we hold them and distribute them per [our] agreements with each of the states. And every state has a different law governing what records can be distributed and what they can be used for.” Documents recently obtained in an ongoing Freedom of Information Act (FOIA) litigation by the Center for Constitutional Rights, NDLON, and Cardozo Law School demonstrate that FBI brass know they’re violating these agreements. Recently uncovered e-mail exchanges among top FBI officials prove it.
FBI Assistant Director Jerome Pender, then in charge of the Bureau’s Criminal Justice Information Services (CJIS) Division, wrote on May 10, 2011 about the dilemma S-Comm causes for the FBI: “[W]e are stuck in the middle of a nuclear war. I don’t think we need DHS direction. I think we need AG direction. If we have to decide, I don’t see how we can use the [fingerprints] in a way the [state] owner explicitly bans. This could cause the whole CJIS model to implode.”
His CJIS colleague replied: “I agree. Any way we go will contradict one of our partners.”
The FBI and DOJ have been lying low on S-Comm, deferring inquiries to DHS despite being the conduit for S-Comm’s fingerprint-sharing. But Attorney General Eric Holder has the obligation to weigh in on S-Comm by honoring the FBI’s agreements with the states — the undisputed owners of these fingerprints.
DHS plans to implement S-Comm nationwide by 2013, despite knowing that the program violates contractual obligations between the states and the FBI. S-Comm is wasteful, has been rejected by the governors of Illinois, New York, and Massachusetts, encourages racial profiling, and prevents immigrants from reporting crimes. It has led to the detention and deportation of innocent crime victims and witnesses, including domestic violence survivors.
The DOJ is aware of all these problems, too. The DOJ’s Civil Rights Division has reported on and is currently investigating a significant number of jurisdictions in which S-Comm has been implemented, for discriminatory policing targeting Latinos and other immigrants. Yet S-Comm continues to operate in these places.
The recent FOIA revelations provide yet another reason why DOJ isn’t an innocent party in the implementation of S-Comm. The nation’s leading law enforcement agency must not continue to breach its agreements with state and local partners, whose voluntary fingerprint submissions are the lifeblood of the FBI’s criminal investigations. DOJ must immediately re-commit to honoring its agreements with the states, and terminate the FBI’s involvement with S-Comm — a failed program that harms public safety every day.
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DHS Begins Review of Deportation Cases, Issues Awaited Prosecutorial Discretion Guidelines
02 months ago
Today, the Department of Homeland Security (DHS) directed ICE attorneys to begin a review process of current immigration cases pending before immigration courts in order to close or dismiss those cases warranting prosecutorial discretion. The attorneys also received additional guidance on how to apply discretion in certain low priority cases. At the same time, DHS announced new training modules for all ICE field agents on prosecutorial discretion. The package of initiatives are a follow up to ICE Director John Morton’s June 17th memo which describes how, when, and why ICE officials should exercise prosecutorial discretion in immigration cases.
By reviewing these pending and incoming immigration cases—a process slated to last two months—DHS hopes to relieve some of the backlog and stop diverting resources from low priority cases and focus more attention on deporting high-priority criminals. There are currently 300,000 current cases pending before immigration courts.
To help immigration officers determine who is a low or high enforcement priority, DHS laid out a set of criteria in another memo. Those who are a high priority include national security risks, convicted felons, gang members, those guilty of immigration fraud, or those who have an egregious record of immigration violations. Those who are a low priority include:
- those in good standing with or veterans of the U.S. Coast Guard or Armed Forces, including spouses or children
- children who have been in the U.S. for more than five years and who are in school or have completed high school
- those who came to the U.S. before the age of 16, have been here for five years, completed high school and is pursing college
- those over the age of 65 who have been in the U.S. for more than 10 years
- victims of domestic abuse, human trafficking or other serious crimes
- LPRs (green card holders) who have been in the U.S. for 10 years or more and has committed a single, minor, non-violent offense
- those with serious mental conditions that require significant medical or detention resources
- those with long-term presence in the U.S., has an immediate U.S. citizen family member and has established compelling ties or made compelling contributions to the U.S.
In determining which cases should receive prosecutorial discretion, DHS requires attorneys to make a case by case determination of eligibility. In addition, no case can be closed or dismissed without first being vetted national security risks and must be approved by a supervising official at CBP, USCIS or ICE.
Although John Morton announced the contours of the discretion policy nearly six months ago, a recent survey by the American Immigration Lawyers Association and American Immigration Council recently found that similar immigration cases received different treatment in different parts of the country. In fact, many requests which seemed to squarely fit within the guidelines for prosecutorial discretion were summarily denied.
Hopefully, the new guidance and procedures will remind ICE field offices that the application of prosecutorial discretion in low-priority cases goes a long way in helping DHS make sure their resources are focused on their stated enforcement priorities—dangerous criminals who pose a that to public safety and national security.
Photo by zwola fasola.