New Priorities in Determining Deportations

Last summer, it was announced that the Department of Homeland Security (DHS) would reassess their priorities in determining which immigration cases would result in the deportation of the individual being considered. If cases did not fall under these heightened priorities, they would be suspended. Immigration and Customs Enforcement’s (ICE) Principal Legal Advisor made an announcement today to all ICE attorneys to start the systematic process of reviewing over 300,000 immigration cases to determine whether pursuing deportation in each case is consistent with the Administration’s enforcement priorities as previously outlined. In addition, ICE also provided more details regarding the criteria that should guide the reviewing process ICE attorneys should use in determining when it is appropriate to exercise prosecutorial discretion to close or dismiss a case.

ICE Receives Directives on How to Decide Immigration Cases

All of this movement in Washington signifies a significant change in the culture of immigration enforcement. DHS will begin to align its resources with the enforcement policies which they will now pursue. In order to determine the fate of each case, ICE attorneys will consider the circumstances of each individual to decide whether removal is appropriate. Namely, resources should be focused on deportations of individuals who pose a real threat to public safety. That being said, the definition of criminality within the department will need to be considered. As a result, there should be fewer deportations of what are considered “low priority” immigrants which include DREAM Act students, individuals with strong family connections in the US and those with longstanding ties to their community here. It is important to note that this does not mean that an immigrant who is not deported is granted legal status in the US. Those who have their cases dismissed or closed will remain in the same status they were in prior to their deportation proceedings.

The Role of Discretion in Immigration Cases

These changes will move DHS closer to the traditional law practices that are in place in other arenas, which emphasize the role of discretion in carrying out legal decisions. Members of a DHS Task Force sent a letter to Congress focusing on the importance of this discretion as an enforcement tool. Of note, they write:

“there is nothing unusual in our recommendation or in DHS’s current efforts to improve its use of prosecutorial discretion. Such discretion is a normal and essential part of the everyday activities of law enforcement agencies and prosecutors’ offices at the local, state, and federal levels across the nation. Exercising prosecutorial discretion, case by case, in a systematic and professional way, does not amount to administrative amnesty. Instead it helps to make sure that resources are focused in ways that best promote the overall enforcement mission.”

Areas of Discretion

There are several considerations that lawyers are being directed to observe. If an immigrant is a suspected terrorist or national security risk, has certain convictions (felonies, multiple misdemeanors, crimes of moral turpitude), is a gang member, or has certain entry details (illegal entry, violated terms of admission in last three years, previous records of removal,  immigration fraud), then ICE attorneys will be directed to go through the normal deportation procedure.

On the other hand, there are several categories of people who’s cases should receive greater discretion and may be closed or dismissed. For example, members of the coast guard or armed services, members of the community in good standing, those children who are either under the age of 5, in school, or completed high school (or its equivalent), those over the age of 65 who have been in the US for more than ten years, those who are legal permanent residents with a single, non-violent conviction, those with a mental or physical disability that requires medical attention, and those who have been in the US for a long time, has a US citizen relative and has ties to his or her community.