President Obama’s Executive Order on Immigration not only provided a reprieve to millions of undocumented aliens in the US, but also signaled a change in enforcement priorities. Under a new November 2014 memorandum entitled Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, the Department of Homeland Security has been ordered to re-prioritize whom it should be actively seeking to remove. This policy wide guidance applies to all immigration arms of DHS including US Immigration and Customs enforcement (ICE), US Customs and Border Patrol (CBP), and US Citizenship and Immigration Services (USCIS). It also, importantly, rescinds and replaces previous memoranda including the famous 2011 Morton Memos that paved the way for Prosecutorial Discretion Requests. People who applying for DAPA relief should also be aware of this memo, as deferred action will not be extended to those who are considered enforcement priorities.
Effective January 2015, DHS will be taking a more pronounced and aggressive stance towards removing people whom it deems a threat to our national security, public safety or integrity of our immigration system. They are broken down loosely into three tiers, which are generally summarized here. Those interested or affected by the memo should read the actual memo, which lays out the entire architecture.
Priority 1 (threats to national security, border security, and public safety)
People in this category are considered the highest priority for removal and are at the highest risk of being apprehended and removed:
a) Aliens engaged in or suspected of terrorism or espionage
b) Aliens apprehended at the border or ports of entry while attempting to unlawfully enter the US
c) Aliens convicted of an offense for which an element was active participation in a criminal street gang
d) Aliens convicted of an offense classified as a felony in the convicting jurisdiction, subject to certain exceptions
e) Aliens convicted of an “aggravated felony”
Priority 2 (misdemeanants and new immigration violators)
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
b) Aliens convicted of a “significant misdemeanor,” which includes offenses of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence. A significant misdemeanor can also include an offense not listed above for which the individual was sentenced to time in custody of 90 or more days (subject to certain exceptions)
c) Aliens apprehended anywhere in the US after unlawfully entering or re-entering the US and who cannot establish that they have been present in the US since January 1, 2014; and
d) Aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.
Priority 3 (other immigration violations)
These are considered people who have been issued a final order of removal on or after January 1, 2014.
Basically, besides the obvious threats to our national security, anyone who has been convicted of a felony (or certain misdemeanors) or who entered the US illegally after January 1, 2014 are at high risk of being picked up by ICE.
Is everyone else safe?
Not necessarily. The memorandum makes clear that nothing should be interpreted to prohibit or discourage the apprehension, detention, or removal of those unlawfully in the US who don’t necessarily fall into the above categories. However, resources and efforts should be concentrated on the three priority categories, which should hopefully encourage DHS personnel to exercise, as well as be open to, prosecutorial discretion requests.