Note on Currentness

This is our article about the immigration civil enforcement priorities issued on November 20, 2014, by the Obama Administration. The Memorandum that instituted these priorities was rescinded on February 20, 2017, but the Secretary of Homeland Security, John F. Kelly. Secretary Kelly instituted a new set of enforcement priorities based on those in an Executive Order issued by President Donald Trump on January 25, 2017. Please see our full article about the new enforcement priorities to learn more [see article].

Introduction: ICE on Civil Enforcement Priorities

On November 20, 2014, the Secretary of Homeland Security, Jeh Johnson, released a Memorandum detailing three distinct levels of civil immigration enforcement priorities for the immigration components of the DHS [PDF version]. The priorities set forth in the Memorandum are guidance for the officers of the Customs and Border Protection (CBP), Immigrations and Customs Enforcement (ICE), and United States Citizenship and Immigration Services (USCIS).

In this article, we will review an ICE FAQ about these enforcement priorities that was published in June of 2015 [PDF version]. Because this article reviews a supplementary document to the November 20, 2014 Memorandum, we encourage you to read our full article about the Memorandum before reading this article [see article]. For additional information on the particulars of the enforcement priorities, please see our article about the types of gang activity that may render an alien a top enforcement priority [see article].

Eligibility for a Favorable Exercise of Prosecutorial Discretion

By their very nature, the enforcement priorities are an exercise of prosecutorial discretion in that they dictate where the DHS will allocate its finite immigration enforcement resources. The DHS and its immigration enforcement components exercise prosecutorial discretion in deciding which immigration cases to pursue, the extent to which they pursue certain cases, and in some cases determining whether to offer relief, where applicable.

The enforcement priorities serve also to restrict the favorable exercise of prosecutorial discretion in certain cases. For example, only a certain subset of immigration officers may exercise favorable prosecutorial discretion, in limited circumstances, with regard to aliens in the second enforcement priority. The number of officers who may consider favorable prosecutorial discretion concerning aliens in the first enforcement priority is even more limited. The circumstances in which the favorable exercise of prosecutorial discretion may be granted in favor of an alien in the third enforcement priority or who is not described in the enforcement priorities at all is broader.

Because the Memorandum limits the circumstances in which an alien in an enforcement priority may be considered for the favorable exercise of prosecutorial discretion, it is in the best interest of an alien who has been apprehended, is in detention, or is facing removal or deportation to argue successfully that he or she is not an enforcement priority based on the language of the Memorandum.

The ICE FAQ explains that if an alien who is detained in ICE custody believes that he or she is not an enforcement priority or otherwise merits a favorable exercise of prosecutorial discretion, the alien “should follow detainee-staff communication procedures” to contact the Deportation Officer overseeing the case.

If the alien is in removal proceedings before the Executive Office of Immigration Review (EOIR) (immigration court) and believes that he or she is not an enforcement priority or should otherwise be eligible for a favorable exercise of prosecutorial discretion, the FAQ advises the alien to submit in advance of the commencement of immigration court hearings a request for prosecutorial discretion to the “prosecutorial discretion email box of the ICE Office of Chief Counsel” that is handling the case [link]. The ICE FAQ explains that attorneys from the Office of the Principal Legal Advisor (OPLA) review cases at the earliest opportunity to find cases where the exercise of prosecutorial discretion may be appropriate in light of the enforcement priorities.

If an alien is otherwise subject to an ICE enforcement action and believes that he or she is not an enforcement priority or otherwise merits a favorable exercise of prosecutorial discretion, the alien may submit an inquiry to the ICE ERO Field Office responsible for handling the case. The ICE FAQ explains that this is because the decision whether to exercise prosecutorial discretion is generally made at the field office level.

It is important to note, as we will again in the conclusion, that aliens are strongly advised to consult with an experienced immigration attorney if they are apprehended, detained, and/or placed into immigration proceedings.

ICE FAQ on Civil Enforcement Priorities

The ICE FAQ provides information on how specific types of cases may be treated under the enforcement priorities. The information in this section will deal with the civil enforcement priorities in general, and priority 1 [see section] and priority 2 [see section] specifically. Please see our full article on the civil enforcement priorities [see article] for our discussion of the relevant text from the Memorandum.

Transition Period Cases

The Memorandum was issued on November 20, 2014, but it did not become effective until January 1, 2014. The ICE FAQ addresses three questions regarding how the ICE would handle certain cases that fell within the gap from the issuance of the Memorandum to its effective date:

Cases where aliens in the United States who were removed and illegally reentered the country before January 1, 2014, but whose prior removal orders were reinstated on or after January 1, 2014;
Cases where aliens were granted voluntary departure by an immigration judge (IJ) or the Board of Immigration Appeals (BIA) before January 1, 2014, and whose voluntary departure period expired on or after that date without them having departed;
Cases where aliens were ordered removed by an immigration judge before January 1, 2014, but whose timely appeals were denied on or after that date.

The question regarding the first point is whether aliens who had reinstated removal orders in that scenario would fall within the scope of the top enforcement priority (priority 1(b)). With regard to the second two points, the question is whether such aliens would be regarded as falling within the third enforcement priority [see section]. For all three questions, the ICE FAQ answered that such cases would be evaluated on a case-by-case basis to determine whether their removal would “serve an important federal interest.”

Are Resources Considered in Determining Whether Prosecution Serves a Federal Interest?

The ICE may pursue the removal of persons not described by the civil enforcement priorities if, in the judgment of an ICE Field Office Director, removing such an alien would “serve an important federal interest.” The ICE FAQ explains that the “normal expenditure of federal resources to prosecute and otherwise adjudicate” a case will not alone determine whether the removal of an individual serves an “important federal interest.” Rather, the ICE must consider, on a case-by-case basis, the conduct of the individual and the effect of that conduct on the integrity of the immigration system.

Expunged Convictions and Juvenile Adjudications

The ICE FAQ addresses whether expunged convictions and juvenile adjudications qualify as offenses for purpose of falling under one of the civil enforcement priorities.

The ICE FAQ explains that expunged convictions “will be assessed on a case-by-case basis” to determine whether the circumstances justify rendering the alien a priority for removal. Such circumstances may include consideration of public safety.

With regard to juvenile adjudications, the ICE FAQ states that “the adjudication of juvenile delinquency is not treated as a conviction.” Therefore, an alien could not be an enforcement priority solely on the basis of a being adjudicated as a juvenile delinquent. However, if a juvenile is tried and convicted as an adult, the conviction will be treated as a “conviction” for purposes of civil enforcement priority determinations.

Danger to National Security and Human Rights Violators — Priority 1(a)

Civil enforcement Priority 1(a) covers “aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security.” The ICE FAQ answers two questions with regard to priority 1(a).

First, the ICE FAQ answers the question “[w]hat does ‘otherwise pose a danger to national security’ mean for purposes of Priority 1(a)?” The FAQ explains that it is guided by the statutory language found in sections 212(a)(3) and 237(a)(4) of the INA. These provisions address inadmissibility and deportability, respectively, for security or related grounds. The ICE FAQ explains that the provisions encompass:

1. Aliens who engaged in espionage, sabotage, the illegal export of goods, technology, or sensitive information;
2. Aliens who have engaged in terrorist activities, including material support of terrorist organizations, solicitation of goods, funds or membership for terrorist acts or terrorist groups and the commission of terrorist activities as defined under the INA; and
3. Human rights violators.

In short, the same activities that would render an alien inadmissible or deportable for posing a danger to national security would render an alien a top priority for removal under the Memorandum. We discuss administrative removal on national security grounds on site [see article].

The ICE FAQ fleshes out the third point regarding “human rights violators.” The FAQ clarifies that the language of Priority 1(a) encompasses those who commit human rights violations. To this effect, the ICE is guided by the language of sections 208(b)(2)(A)(i), 212(a)(2)(G), 212(a)(3)(E), and 212(a)(3)(G) of the INA. The ICE FAQ explains that these provisions cover aliens who engaged in, committed, ordered, incited, assisted, or otherwise participated in:

Severe violations of religious freedom;
Nazi persecution;
Genocide;
Torture;
Extrajudicial killings;
Use or recruitment of child soldiers; and
Persecution.

Identity Theft Offense Where Immigration Status is Related — Priority 1(d), 2(a), or 2(b)

The ICE FAQ addresses how the ICE will handle cases involving identity theft offenses where immigration status is not an “explicit element” (meaning necessary for conviction) of the offense but is “related” to the offense. This is significant in the context of Priority 1(d) (aliens with felony convictions) and Priority 2(a) (three or more misdemeanor convictions) because both of these priority brackets exempt offenses where the alien’s immigration status is an “essential element” of the offense. Priority 2(b) covers “significant misdemeanors where the sentence of time in custody is 90 days or more.”

The ICE FAQ notes that in such cases an alien may be an enforcement priority, but that ICE officers “should be sensitive to the overall circumstances of the arrest and conviction in such cases.” The ICE FAQ lists relevant factors that should be considered:

Whether the DHS was the agency that presented the case for prosecution;
Whether there is a victim in the case;
The nature of any loss or harm experienced by the victim as a result of the crime;
The sentence imposed (including whether the conviction was subsequently reclassified as a misdemeanor);
Whether there is any indication that the conviction has been collaterally challenged based on allegations of civil rights violations; and
The nature and extent of the individual’s criminal history.

In short, whether an identity theft offense that tangentially involves an alien’s immigration status will render the alien an enforcement priority will depend on the ICE’s assessment of these factors in the specific case.

Driving Under the Influence — Priority 2(b)

Priority 2(b) includes within the scope of “significant misdemeanors where the sentence of time in custody is 90 days or more” convictions for driving under the influence (DUI). The FAQ addresses what “DUI” means in the context of Priority 2(b).

First, the ICE FAQ explains that the elements of the state law for which the alien was convicted in violation of must be considered. This means that the ICE must assess, under the relevant statute, the elements, or things the government was required to prove in order to procure a conviction against the alien. In order for a DUI conviction to render an alien an enforcement priority under Priority 2(b), the statute of conviction must:

1. Constitute a misdemeanor as defined by federal law (specifically, one for which the maximum term of imprisonment authorized is one year or less, but greater than five days);
2. Require proof of the operation of a motor vehicle; and
3. Require, as an element of the offense (meaning necessary for the conviction), either a finding of impairment or a blood alcohol content of .08 or higher.

In general, provided that the statute of conviction meets these requirements, the convicted alien will be an enforcement priority under Priority 2(b). However, the FAQ notes that the ICE may, on a case-by-case basis, determine that an alien is not an enforcement priority. In the context of DUI offenses, the ICE may consider:

The level of intoxication;
Whether the individual was operating a commercial vehicle;
Any additional convictions for alcohol or drug-related DUI offenses;
Circumstances surrounding the arrest (including the presence of children in the vehicle, or harm to persons or property);
Mitigating factors (such as the conviction being for a lesser-included DUI offense under state law); and
Other relevant factors demonstrating that the individual is not a threat to public safety.

Please see articles on site about DUIs in the context of consular revocations [see article] and aggravated felony crimes of violence [see article] to learn more about how a DUI may affect immigration status.

Significantly Abusing Visa or Visa Waiver Programs — Priority 2(d)

In determining whether an alien should be an enforcement priority for having significantly abused the visa or visa waiver programs under Priority 2(d), the ICE must consider “the totality of the circumstances.” This is an interesting issue because, as the ICE FAQ notes, the term “significant abuse” is neither defined in the immigration laws nor in the Memorandum. The ICE FAQ explains that the term “should be interpreted to include intentional violations of the immigration laws that distinguish the alien as a priority because of the noteworthy or substantial nature of the violations or frequency.”

The ICE FAQ explains that an “overstay,” by itself, should not render an alien an enforcement priority under Priority 2(d). Furthermore, the length of an overstay “should not generally be a factor in the determination.” The ICE FAQ takes the position that “[p]rior or subsequent immigration violations or an adverse credibility finding are not determinative,” but are relevant. However, the ICE FAQ explains that fraud when seeking an immigration benefit (at the time of entry or during the visa application process) is significant and should be considered under the totality of the circumstances.

The ICE’s position suggests that most violations of the visa or visa waiver programs will not render an alien a priority under Priority 2(d), but rather that this priority is instead reserved for aliens who commit particularly serious violations such as fraud or misrepresentation in procuring the visa or upon entry. However, it is important to note merely not being an enforcement priority does not mean that the alien is not removable, because even comparatively minor violations of a nonimmigrant visa or of the visa waiver program will often render an alien subject to apprehension and removal under the immigration laws. .

Conclusion

The ICE FAQ provides useful information on several points of the current DHS enforcement priorities. It is important to remember that the provisions for apprehension, detention, and removal are guided by the INA, and not by the Memorandum. The civil enforcement priorities constitute current DHS guidance and policies, but they do not override the immigration laws. This means, for example, that an alien who overstays his or her period of authorized stay and is in the United States without status is likely technically removable, regardless of whether he or she can be classified under Priority 2(b). However, the DHS policies mean that the DHS is less likely to pursue non-priority cases than priority-cases, and it may be more amenable to exercising prosecutorial discretion in cases where the alien who, while subject to charges under the immigration laws, is not deemed a high priority for removal. An alien who has been apprehended, detained, or charged with removability is well advised to consult with an experienced immigration attorney immediately for a full evaluation of his or her options given the facts of the particular case.