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The Department of Homeland Security (DHS) has issued its first policy update in light of President Obama's recent executive order on immigration issues. Secretary Jeh Johnson issued a memo on November 20, 2014 to the heads of Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP) and Citizenship and Immigration Service (CIS). The memo rescinds and updates prior agency memos on the use of prosecutorial discretion.
Secretary Johnson issued the memo to "provide clearer and more effective guidance" on enforcement priorities. The agency will continue to focus deportation efforts on:
The memo acknowledges "limited resources" and flatly admits that DHS simply cannot respond to all immigration violations or remove all persons who are in the U.S. without status. In light of this, DHS must exercise prosecutorial discretion and focus on these priorities.
Importantly, Secretary Johnson called upon the three agencies to use prosecutorial discretion not only in deciding whether to file for deportation, but at every stage of those proceedings as well. Although early use of discretion is encouraged so as to allow for efficient use of government resources, the memo specifically envisions and recognizes the use of discretion throughout the process, including in 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 a stay of removal instead of pursuing removal in a case.
The memo then discusses the three civil immigration enforcment policies.
The highest priority is to be given to aliens engaged in terrorist activity or posing a threat to national security, aliens caught at the border, gang members, convicted felons and aggravated felons.
The second priority is for aliens with 3 or more misdemeanor offenses (other than traffic), aliens convicted of a "significant misdemeanor" such as domestic violence, burglary, sexual assault, aliens who illegally entered or reentered the U.S. after January 1, 2014 and aliens who have significantly abused the visa or visa waiver program.
The third priority is for aliens who have been issued a final order of removal on or after January 1, 2014.
The memo goes into effect on January 5, 2015.
Some interesting thoughts from this part of the memorandum. The memo suggests that DHS attorneys can use their new level of discretion in agreeing or disagreeing to join in motions with an alien's attorney. Perhaps this means that DHS counsel will be more willing to enter into motions to reopen cases that were previously decided. T
he fact that the memo distinguishes between people who received a removal order before January 1, 2014 and after suggests that people ordered deported before 2014 may have avenues of relief previously prohibited. Time will tell on this issue.
The memo does certainly allow for the continued apprehension, detention and removal of anyone in the U.S. without authorization, but again encourages the use of the priority system set out in the memo. The memo also addresses DHS detention and allows for release from mandatory detention including the sick, primary caregivers of children or anyone else in whom the continued detention does not serve the federal government's interests.
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