Few people may be aware that the much-vilified Secure Communities Program has actually been discontinued and replaced by a purportedly more focused Priority Enforcement Program, or "PEP." The death knell of Secure Communities was actually heard in November of 2014 when DHS Secretary Jeh Johnson released a memo about it, but only recently have ICE officers received training in the implementation and application of PEP.
What are the Major Changes?
Categories of Aliens Exposed To Detainers Restricted
There are actually some very significant changes to ICE's detainer policy. The gist is that ICE will be narrowing its focus and devoting its resources to pursuing individuals convicted of significant criminal offenses or who otherwise pose a threat to public safety. According to the agency, "ICE will only seek transfer of individuals in state or local custody in specific, limited circumstances." What does this mean in practical terms for foreign nationals in New Jersey as well as elsewhere? If the program is implemented fairly the way it is supposed to, two large populations of aliens will hopefully benefit:
- Aliens with only civil immigration violations (ie., simple overstays)
- Aliens who are charged but not convicted of crime
Under Secure Communities, a sizeable contingent of these people was indiscriminately swept up and unreasonably detained. Now, ICE should be hewing to the new priority guidelines and seek transfer of individuals only when the alien has been convicted of an offense listed in Priority 1 (a), (c), (d), and (e) and Priority 2(a) and (b)--found in the November 20, 2014 Memo entitled Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants Memorandum--or when, in the judgment of an ICE Field Office Director, the alien otherwise poses a danger to national security. The aforementioned priorities include the following, respectively:
- Aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security
- Aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 USC 521(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;
- 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
- Aliens convicted of an "aggravated felony" as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction
- Aliens convicted of three or more misdemeanors offense, other than minor traffic offense 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
- 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)
Detainer Holds To Be Replaced by Notifications and Requests
Some may call this a matter of semantics but detainers as we used to know them will effectively be no more. In most cases, anyone whom ICE seeks to assume custody of will now be the subject of a I-247N, "Request for Voluntary Notification of Release", which essentially means that ICE is asking the local law enforcement agency to give them a "heads up" at least 48 hours prior to release of someone ICE deems a suspected priority removable individual.
In more serious cases, ICE may serve the law enforcement agency or facility with an I-247D "Immigration Detainer- Request for Voluntary Action." Under these circumstances, ICE is requesting (but cannot compel) the agency or facility to maintain custody of the individual for a period not to exceed 48 hours beyond the time the person would otherwise be released. Two significant changes to this policy is 1) that the 48 hours no longer excludes weekends or holidays and 2) a copy of the detainer form must actually be served on the individual in order for the request to be effective.
It cannot be overemphasized that these are just some, but certainly not all of the new changes coming down the pipeline. This is not intended to be exhaustive or an in-depth analysis of the PEP program and anyone potentially affected by ICE detainer issues owes it to him or herself to consult with an attorney, as there are many nuances as well as unresolved issues that have yet to be addressed by ICE about PEP.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.