April 2017 ICE/AILA Q&A on New Immigration Enforcement Policies

 

Introduction

On June 6, 2017, the American Immigration Lawyers Association (AILA) posted the official Q&As from the April 6, 2017 AILA liaison meeting with the United States Immigration and Customs Enforcement (ICE). In the Q&A, ICE answered several questions relating to policy changes subsequent to the issuance of President Donald Trump's January 25, 2017 Executive Orders and Homeland Security Secretary John Kelly's implementing memoranda [see article]. In this post, we will examine some of the key points from the Q&A [PDF version see AILA Doc. No. 17060602 (Posted June 6, 2017)].

Interior Memo

1. Questions and Answers Regarding Interior Enforcement Policies

This section will examine some of the questions and answers regarding interior enforcement policies.

Hiring of 10,000 ICE Officers and Agents

Secretary Kelly's February 20, 2017 Department of Homeland Security (DHS) memorandum titled “Enforcement of the Immigration Laws to Serve the National Interest” (“Interior Memo”) [see article] directed the ICE to hire 10,000 officers and agents expeditiously. AILA asked ICE to explain the steps it has taken thusfarto implement the directive.

The ICE responded that implementing the hiring initiative depends on as yet undelivered funding from congress. However, in the interim, the ICE stated that it was working on a staffing model. It made clear that “Secretary Kelly is not going to alter training or sacrifice quality in order to expedite the hiring process.”

ICE Memoranda Still in Effect

The ICE confirmed that the following four ICE memoranda remain in effect as of June 6, 2017:

  • Morton, Director, “Enforcement Actions at or Focused on Sensitive Locations” (Oct. 24, 2011) [PDF version];
  • “11064.1: Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities” (Aug. 23, 2013) [PDF version];
  • Homan, Executive Associate Director, “Identification and Monitoring of Pregnant Detainees” (Aug. 15, 2016) [PDF version]; and
  • “11065.1: Review of the Use of Segregation for ICE Detainees” (Sep. 4, 2013) [PDF version].

Clarifying New Enforcement Priorities

In the Interior Memo, Secretary Kelly set forth new immigration enforcement priorities [see article].

AILA asked ICE to define “resolved” in the context of its use in the provision in the Interior Memo making an enforcement priority those “removable aliens who… (2) have been charged with any criminal offense that has not been resolved…”

  • The ICE explained that it defines “resolved” as “the end of the criminal process.”

AILA then asked how the ICE determines whether a removable alien has “committed acts which constitute a chargeable offense.”

  • The ICE responded that it determines whether to an arrest an alien based on whether there is probable cause of alienage and removability. It stated that it will determine whether an individual committed acts that constitute a chargeable offense “through various investigative methods and sources, such as criminal history records.”

AILA then asked whether the chargeable offense priority encompasses individuals who committed immigration violations, such as entry without inspection or failure to maintain a current address.

  • ICE responded that the provision “applies to any acts which constitute a chargeable offense.”

AILA asked if the provision applies to cases where an alien was charged but the case was subsequently dismissed.

  • ICE replied that it can apply to such cases. ICE first noted that it will enforce the immigration laws “based on the probable cause test of alienage and removability…” Beyond that, it stated that it will consider the priorities set out in both President Trump's Executive Order and the Interior Memo “when evaluating enforcement options.”

Finally, AILA asked whether the provision of the Interior Memo that states that the DHS “should prioritize removable aliens who… (6) are subject to a final order of removal but have not yet complied with their legal obligation to depart the United States…” applies to individuals who have final orders of removal but also pending benefit applications.

  • The ICE responded that it would make such determinations on a case-by-case basis.

Prioritizing Removal of “Particularly Dangerous Aliens”

AILA noted that the Fact Sheet issued along with the Interior Memo [PDF version] states that the ICE should prioritize the removal of “particularly dangerous aliens, such as convicted felons, gang members[,] and drug traffickers.” AILA inquired as to whether the ICE would consider the seriousness of the crime or the time elapsed since the crime was committed in setting priorities.

The ICE responded that it may take such factors into consideration. ICE stated in response to a follow-up question that it also takes into consideration the “totality of the circumstances,” including the alien's criminal and immigration history and any other aggravating or mitigating factors.

Detained Aliens With Pending Criminal Matters

AILA asked ICE what it would do to ensure that a removable alien who is detained based on being a removal priority for pending criminal matters shows up for his or her criminal court proceedings.

ICE responded that its Enforcement and Removal Operations (ERO) works with relevant state and local law enforcement agencies “to arrange for the smooth transfer of custody…” However, ICE added that it only works with such agencies “provided that those agencies commit to returning the alien to ICE custody upon the completion of any criminal confinement.” To this effect, ICE explained that it will engage with the relevant District Attorney to determine whether he or she has the resources to prosecute the case, and with the Sheriff's office regarding custody decisions.

Concerning DACA and DACA+/DAPA

ICE explained that if it encounters an individual with DACA who is deemed to be a public safety threat, it may take immigration enforcement action. Such determinations are made on a case-by-case basis.

It explained that it often apprehends aliens through the Criminal Alien Program (CAP) and the Fugitive Operations Team. It underscored that it “is not undertaking any efforts to obtain USCIS's data for enforcement actions.”

However, it is important to note that DACA remains in effect and the underlying memoranda have not been rescinded.

Enforcement Actions Against Individuals With Pending Adjustment Applications

AILA asked whether the ICE is contemplating taking enforcement actions against individuals whose underlying status expired but who also have pending adjustment of status applications.

ICE responded that any alien who is removable may be subject to removal proceedings. ICE makes such determinations on a case-by-case basis and at the discretion of the individual ICE officer.

Enforcement Actions Against Individuals With Pending U Visa Applications

AILA asked whether ICE is contemplating taking enforcement actions against individuals whose status has expired but who have pending applications for U visas.

ICE responded that if an alien it encounters provides proof of a pending U visa application, ICE “will seek a prima facie [(“on the face”)] determination of the U visa from the USCIS. ICE will then make a case-by-case determination.

Please see our full selection of U visa articles to learn more [see category].

No Update on Plans to Expand Expedited Removal

The Interior Memo suggested that the DHS may expand the use of expedited removal to the maximum extent permitted by statute [see section].

ICE explained that it does not have an estimated timeline for when Secretary Kelly may release new policies for expedited removal. Accordingly, the expedited removal policies that pre-existed the Trump Administration remain in effect as of the publication of this article.

Definition of “Pose a Risk to Public Safety or National Security”

President Donald Trump's Executive Order on interior enforcement directed the DHS to prioritize for removal any foreign national who is determined to pose a risk to public safety or national security. AILA asked ICE if any guidance is forthcoming regarding this directive.

ICE responded that its officers will make this determination based on training and judgment. An ICE officer must provide his or her superiors with the rationale for concluding that there is probable cause to believe that a person poses such a risk.

Prosecutorial Discretion

The Interior Memo stated that the DHS General Counsel will issue guidance to attorneys handling immigration proceedings regarding the exercise of prosecutorial discretion.

ICE informed AILA that the General Counsel has not yet finalized this guidance.

The ICE explained that its Office of the Principal Legal Advisor (OPLA) is responsible for litigating cases that have been placed into immigration litigation by the issuance of a Notice to Appear (NTA). It stated that the OPLA will continue to exercise prosecutorial discretion on a case-by-case basis using the totality of the circumstances approach.

ICE suggested that immigration “[p]ractitioners will see a shift in ICE practices related to administrative closure, termination, and not filing an NTA.” To this effect, local Offices of Chief Counsel (OCCs) “will no longer be accepting requests for prosecutorial discretion through the electronic mailboxes established under the previous administration.” OCCs will now make final decisions on prosecutorial discretion requests, and requests will not be reviewed by OPLA headquarters.

ICE informed AILA that it maintains discretion regarding whether to detain an alien or release the alien on bond, supervision, or personal recognizance, as well as in setting the bond amount.

2. Questions and Answers Regarding Border Security

This section will examine some of the questions and answers regarding border security policies.

ICE Still Using Risk Classification Assessment Tool

AILA asked ICE whether it is still using the Risk Classification Assessment (RCA) tool in order to help officers determine whether to detain or release aliens who have been taken into immigration custody.

ICE stated that at the time of the question and answer the RCA tool was still in use and had not been revised. However, decisions on whether to detain or release aliens are based on the guidance in President Trump's Executive Order on border security.

Cuba Policy Update

AILA asked ICE whether there are any updates regarding removals to Cuba.

ICE responded that there have been no updates since the DHS revised policies on removals to Cuba on January 12, 2017 [see article]. ICE explained that it continues to collaborate with Cuba and has executed several removals.

3. Post Order Issues

The following questions and answers relate to issues that may arise subsequent to the issuance of a final order of removal.

Stay Applications

AILA noted that. under the previous administration, ERO officers were not pursuing the removal of aliens who did not qualify as enforcement policies under the November 20, 2014 memo [see archived article]. Those policies allowed ERO officers discretion to determine whether to accept the Form I-246, Application for Stay of Removal. It added that many local ERO officers nevertheless declined to accept stay applications from aliens who were not enforcement priorities.

First, AILA asked ICE if it will continue to accept Form I-246 stay applications from such individuals in light of the fact that the memo outlining the Obama Administration's enforcement priorities was rescinded by Secretary Kelly. ICE responded that it will continue to accept Form I-246 applications, and that individuals are advised to keep their stays of removal current.

In response to a follow-up question, ICE recommended generally that individuals submit stay applications within 30-60 days of the expiration of a stay of removal. However, it added that local practices may vary. Accordingly, individuals should refer to the policies of the relevant local office.

Review of Detention Data for Individuals Held Over 180 Days

AILA asked ICE how often it reviews detention data to identify aliens who have been held in immigration detention for more than 180 days.

ICE explained that ERO “routinely reviews detained cases that meet [the 180-day] threshold.” It added that ICE is now more likely to hold individuals beyond 180 days in certain cases because it is more likely that ICE will be able to remove them. ICE explained that the reason behind this is that numerous countries that were previously reluctant to accept the return of their nationals have become more cooperative. ICE noted that this includes Iraq and many countries in Sub-Saharan Africa, Europe, and Central Asia.

Conclusion

This question and answer help shed light both on the ICE's current implementation of new immigration policies and also its plans for implementing future provisions. Any individual with questions relating to his or her overall immigration situation, pending immigration proceedings, or immigration detention should consult immediately with an experienced immigration attorney.

Please note that all of the information in this article is current as of June 6, 2017. We will update the website with information as any subsequent policy changes are announced.