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 The Memorandum that instituted these priorities was rescinded on February 20, 2017, but the Secretary of Homeland Security, John F. Kelly.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: Apprehension, Detention, and Removal Priorities
On November 20, 2014, the Secretary of the Department of Homeland Security (DHS), Jeh Johnson, released a memorandum detailing revised immigration enforcement priorities “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” [PDF version]. The policy guidance took effect on January 5, 2015. The memorandum set forth three civil immigration enforcement priorities. The memorandum remains guidance for the Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and the United States Citizenship and Immigration Services (USCIS). For further guidance, please see our article on the ICE Fact Sheet on the policies published in June of 2015 [PDF version] [see article]. In this article, we will examine the background of the enforcement priorities, the three enforcement priorities, and the future for prosecutorial discretion in setting enforcement prioritization levels.
Legal and Policy Basis for the Memorandum
The November 20, 2014 Memorandum explains that the DHS and its three immigration components, the ICE, CBP, and USCIS, are responsible for enforcing the immigration laws of the United States. However, like any other law enforcement agency, the DHS and its immigration components have finite resources. This necessarily means that the DHS must choose where to direct its resources. In allocating its resources, the DHS may exercise what is called “prosecutorial discretion.” In effect, this means that the DHS, like other law enforcement agencies, has a certain amount of discretion to choose which cases or types of cases to focus on.
The Memorandum takes the position that prosecutorial discretion “should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear…” Rather, the Memorandum explains, the DHS’s prosecutorial discretion should apply as well to a range of immigration enforcement decisions, such as deciding:
whom to stop, question, and arrest;
whom to detain or release;
whether to settle, dismiss, appeal, or join in a motion on a case; and
whether to grant deferred action, parole, or stay of removal instead of pursuing removal on a case.
The Memorandum explains that, while the DHS’s prosecutorial discretion may be exercised at any point in a case, it is generally better to exercise it early rather than late. An early exercise of prosecutorial discretion prevents the government from expending resources on a case until discretion is exercised at a later point. This is one of the crucial reasons why the DHS saw fit to create new enforcement priorities that could be relied upon in determining whether to pursue prosecution in a given case.
The DHS created the policies to prioritize “threats to national security, public safety, and border security.” It is important to not construe the guidelines as permitting or abetting immigration law violations that may not be a top enforcement priority. The Memorandum does not encourage, prohibit, or discourage the prosecution of aliens who violate the immigration laws but who may not fall within the scope of one of the three civil enforcement priorities. However, the guidelines provide a way to determine the types of cases that the DHS will pursue for prosecution most vigorously [see section].
The Enforcement Priority Levels
The following three subsections will cover each of the DHS’s civil enforcement priorities. The first priority is the DHS’s highest enforcement priority, while the third priority is the lowest. As we will examine, the Memorandum is not encouraged to prohibit or discourage the prosecution of aliens who violate the immigration laws but who may not fall within the scope of one of the three civil enforcement priorities.
Priority 1: Threats to National Security, Border Security, and Public Safety
This is the highest civil enforcement priority. This means that the DHS focuses its resources most heavily on prosecuting cases described by this prioritization level. The following is the list of cases that fall under the top civil enforcement priority level:
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. 521(a), or aliens not younger than 16 years of age who intentionally participated in an organized street 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 the term is defined in section 101(a)(43)(F) of the Immigration and Nationality Act [INA] at the time of the conviction.
The Memorandum instructs immigration officers that the removal of an alien described by any of the above provisions must be prioritized unless:
He or she qualifies for asylum or another form of relief under the immigration laws; or
An ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations finds that there are “”compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety.”
With regard to points priority 1(a) and (b), we have published articles about administrative removal for those who pose a threat to national security [see article], on expedited removal [see article], and on reinstatement of removal [see article] for certain aliens apprehended at the border or shortly after entry without inspection.
To learn about the statute the Memorandum relies upon for priority 1(c) involving criminal street gangs, please see our companion article [see article].
Regarding point priority 1(d), the Memorandum specifically exempts from the first priority level state or local felony convictions where the alien’s immigration status, or lack thereof, was an essential element of the conviction. This means that the conviction will not place the alien in the first priority bracket if the conviction could not have been procured without respect to immigration status.
To learn about immigration aggravated felonies found in section 101(a)(43) of the INA, please see our full article [see article].
Furthermore, please note that we have numerous articles in our Criminal Aliens [see category] and Removal and Deportation Defense [see category] categories on immigration aggravated felonies.
Priority 2: Misdemeanants and New Immigration Violators
Aliens described in this category are not prioritized for removal as highly as those in category 1, but they still represent a significant priority for the DHS. The following points describe aliens in the second civil enforcement priority:
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; unlawful 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 (the sentence must involve time to be served in custody, and does not include a suspended sentence);
c. Aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States 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 Director, have significantly abused the visa or visa waiver programs.
Although priority 2 aliens are not prioritized for prosecution at the same level as priority 1 aliens, the circumstances under which prosecutorial discretion may be exercised in their favor are almost as limited as for priority 1. The Memorandum instructs immigration officers that the removal of an alien described by any of the above provisions must be prioritized unless:
He or she qualifies for asylum or another form of relief under the immigration laws; or
An ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director finds that there are “compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety.”
In effect, the rules are the same for priority 1 and priority 2, except for the fact that a USCIS Service Center Director may also find that a priority 2 alien is not a threat to national security, border security, or public safety.
Priority 2(a) covers aliens who have been convicted of three or more misdemeanors for three or more discrete offenses. This provision is intended to ensure that repeat law violators are prioritized for removal. Similar to a few of the points in priority 1, offenses where an “essential element” of the conviction was the alien’s immigration status are not counted.
Priority 2(b) covers “significant misdemeanors.” This provision is intended to prioritize for removal aliens who are convicted in violation of statutes which proscribe serious offenses, but which are not themselves felony statutes. The following points are notes on some of the provisions in point b.
Regarding the inclusion of “domestic violence,” the Memorandum explains in a footnote that “careful consideration should be given to whether the convicted alien was also the victim of domestic violence.” If it is found that the convicted alien was also a domestic violence victim, this should be considered to be a mitigating factor in determining whether discretion should be exercised in favor of the alien.
Priorities 2(c) and (d) are intended to prioritize those who commit serious violations of the immigration laws, rather than criminal laws.
Priority 3: Other Immigration Violations
Priority 3 encompasses aliens who have been issued a final order of removal on or after January 1, 2014. Under 8 C.F.R. 1241.1, an order of removal becomes final (paraphrased):
a. Upon dismissal of an appeal by the Board of Immigration Appeals (BIA);
b. Upon waiver of appeal by the respondent (alien);
c. Upon expiration of the time allowed for appeal if the respondent does not file an appeal within that time;
d. If certified to the BIA or Attorney General, upon the date of the BIA’s or Attorney General’s decision ordering removal;
e. If the Immigration Judge orders an alien removed in the alien’s absence, immediately upon entry of the order; or
f. If the Immigration Judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the departure period, or upon the failure to post a required voluntary departure bond within 5 business days (if the respondent files a timely appeal with the BIA, the order becomes final upon the final order of removal by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General).
This is the third and lowest of the three enforcement priorities. Furthermore, it covers only aliens who were issued a final order of removal on or after January 1, 2014, making it time-dependent. The Memorandum instructs that aliens in priority 3 should generally be removed unless they are:
Eligible for asylum or another form of relief under the immigration laws; or
Found to be, in the judgment of an immigration officer, not a threat to the integrity of the immigration system, or if there are other factors suggesting that the alien should not be an enforcement priority.
Notably, an alien in priority 3 may be eligible for a favorable exercise of discretion if an immigration officer makes certain determinations. This is far broader than the scenarios in the first two priority brackets, where specific high-level immigration officials were vested with the exclusive authority to make such a determination.
Memorandum Does Not Inhibit Other Enforcement Actions
The memorandum is not intended to excuse immigration violators who do not fall within the three enforcement priorities. By statute, there are many ways to be subject to apprehension, detention, and/or removal that are not enforcement priorities in the Memorandum. Such persons remain subject to apprehension, detention, and/or removal, and they cannot escape such penalties merely because they are not enforcement priorities under the Memorandum.
Detention
The Memorandum explains that, in general, DHS detention resources should be used to support the three detention priorities and cases where deletion is mandated by statute. The Memorandum instructs that, absent “extraordinary circumstances” or a statutory requirement, DHS field office directors should not expend detention resources on:
Aliens who are known to be suffering from serious physical or mental illness;
Aliens who are disabled, elderly, pregnant, or working;
Aliens who demonstrate that they are primary caretakers of children or of an infirm person;
Aliens whose detention is otherwise not in the public interest.
In order to detain aliens in any of the above four categories who are not subject to mandatory detention under statute, DHS officers or special agents must obtain special approval from the ICE Field Office Director. If an alien who is subject to mandatory detention falls under one of the above four categories, DHS field office directors “are encouraged” to contact their local Office of Chief Counsel for guidance on how to proceed.
Exercising Prosecutorial Discretion
By their nature, the immigration enforcement priorities require DHS officers to exercise prosecutorial discretion. Within each of the three prioritization levels, there are limits on which level of officials may exercise prosecutorial discretion, with more officials authorized to make discretionary decisions regarding aliens in the third priority bracket or outside of the three priority levels entirely, and significantly fewer being empowered to make such decisions in the first two priority brackets.
The Memorandum lists the factors that DHS personnel should consider in deciding whether to exercise prosecutorial discretion in a given case (where applicable):
Extenuating circumstances involving the offense or conviction;
Extended length of time since the offense or conviction;
Length of time in the United States;
Military service;
Family or community ties in the United States;
Status as a victim;
Being a witness or plaintiff in civil or criminal proceedings; or
Compelling humanitarian factors such as poor health, age, pregnancy, parent/guardian of a young child, or caretaker of a seriously ill relative.
The Memorandum notes that these factors are “not intended to be dispositive nor is this list intended to be exhaustive.” This is because the decision of whether to exercise prosecutorial discretion is made on a case-by-case basis in light of the “totality of the circumstances.”
The ICE Fact Sheet explains that if an alien believes that he or she is not an enforcement priority or should otherwise be eligible for an exercise of prosecutorial discretion, he or she may apply for prosecutorial discretion. Such inquiries may be made by aliens in detention, in proceedings, or who are otherwise subject to an ICE enforcement action.
Conclusion
The Memorandum sheds light on the types of cases that the DHS prioritizes for enforcement action and also the cases where it is highly unlikely that the DHS will exercise prosecutorial discretion favorably. As the Memorandum notes, it is important to not construe its guidance as exempting those not listed in the priorities from applicable immigration laws. If an alien violates any provision of the INA that proscribes apprehension, detention, or removal, he or she will be subject to removal from the United States regardless of exclusion from the three prioritized categories. If an alien is apprehended, detained, and/or charged as removable or deportable, it is essential that he or she consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to evaluate the case and determine the best manner in which to represent his or her client’s interests.
To see statistics about how the enforcement priorities have affected DHS’s detention statistics, please see a blog on the subject [see blog].
It is worth noting that the next President may alter the current enforcement priorities. It will bear watching whether the next administration maintains the current policies, tweaks them, or opts for a more comprehensive overhaul.
