Apprehension, Detention and Removal of Undocumented Immigrants Memo

Posted by Matthew Green | Dec 01, 2014 | 0 Comments

President Barack Obama's announcement on immigration reform has resulted in a policy change affecting the apprehension, detention, and removal of undocumented immigrants. As a result, the Department of Homeland Security (DHS) Secretary Jeh Johnson has issued a memorandum on the relevant policy changes.  The following is a summary of the homeland security memorandum.

Given the limited resources of DHS, the memorandum seeks to clarify the priorities of the department and reflect the new policies for the apprehension, detention, and removal of aliens in the U.S. These changes will impact the actions of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP); and U.S. Citizenship and Immigration Services (USCIS).

DHS cannot enforce all immigration law violations, or removal all unlawful persons.  Immigration enforcement and removal should prioritize threats to national security, public safety and border security.  As such, DHS will exercise prosecutorial discretion in their law enforcement.  Changes to the policy are intended to provide clearer guidance on this issue, and to provide greater transparency on removal statistics to promote public confidence.

Civil immigration enforcement is prioritized into three categories, from highest to lowest priority.

Priority 1 immigrants represent the highest priority, as threats to national security, border security and public safety.  This includes those undocumented immigrants who are:

  • engaged in or suspected of terrorism, espionage, or pose a danger to national security;

  • apprehended at the border attempting entry into the U.S.;

  • convicted of an offense related to participation in a criminal street gang;

  • convicted of a felony offense, (other than local offenses with immigration status as an essential element); and

convicted of an aggravated felony, as defined by the Immigration and Nationality Act, Section 101(a)(43).

Priority 2 immigrants represent the second-highest priority, as those convicted of misdemeanors, and new immigration violators. This includes those undocumented immigrants who are:

  • convicted of three or more misdemeanor offenses, (other than minor traffic offenses or state or local offenses with immigration status as an essential element);

  • convicted of a “significant misdemeanor,” which include domestic violence, sexual abuse, burglary, unlawful possession or use of a firearm; drug distribution; driving under the influence, and other crimes with a sentencing of 90 days or more;

  • apprehended in the U.S. if they entered after January 1, 2014; and

  • judged to be abusers of the visa or visa waiver program.

Priority 3 immigrants represent the lowest priority, as those who have been issued a final removal order after January 1, 2014.  They are to generally be removed unless, in the judgement of immigration officials, they do not represent a threat to the integrity of the immigration system.

These policy changes do not prohibit or discourage the apprehension, detention or removal of all other aliens.  The memorandum impacts how resources should be dedicated, as prioritized above.  Others not defined above, may be pursued for removal in the judgement of immigration officials if doing so would serve an important federal interest.

DHS detention resources should generally match the apprehension and removal priorities outlined above. Field offices should not waste detention resources on individuals who may be suffering serious physical or mental illness, those who are disabled, elderly, pregnant or nursing, or who demonstrate they are primary caretakers, or whose detention is not in the public interest.

These guidelines are to go into effect on January 5, 2015. The full memorandum on the Apprehension, Detention and Removal of Undocumented Immigrants can be found here.

About the Author

Matthew Green

Managing Attorney. The Law Offices of Matthew H. Green focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...

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