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Matthew Kolken on Deportation And Removal

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  1. New Policies for the Apprehension and Removal of Undocumented Immigrants

    by , 11-21-2014 at 01:03 PM (Matthew Kolken on Deportation And Removal)
    Click here to print a .pdf version of the new November 20, 2014, memorandum on the Policies for the Apprehension and Detention and Removal of Undocumented Immigrants.

    Here is a text version of the contents:

    This memorandum reflects new policies for the apprehension, detention, and removal of aliens in this country. This memorandum should be considered Department-wide guidance, applicable to the activities of U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship and Immigration Services (USCIS). This memorandum should inform enforcement and removal activity, detention decisions, budget requests and execution, and strategic planning.

    In general, our enforcement and removal policies should continue to prioritize threats to national security, public safety, and border security. The intent of this new policy is to provide clearer and more effective guidance in the pursuit of those priorities. To promote public confidence in our enforcement activities, I am also directing herein greater transparency in the annual reporting of our removal statistics, to include data that tracks the priorities outlined below.

    The Department of Homeland Security (DHS) and its immigration components- CBP, ICE, and USCIS-are responsible for enforcing the nation's immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion, DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities. DHS's enforcement priorities are, have been, and will continue to be national security, border security, and public safety. DHS personnel are directed to prioritize the use of enforcement personnel, detention space, and removal assets accordingly.

    In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including 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. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing enforcement and removal of higher priority cases. Thus, DHS personnel are expected to exercise discretion and pursue these priorities at all stages of the enforcement process-from the earliest investigative stage to enforcing final orders of removal-subject to their chains of command and to the particular responsibilities and authorities applicable to their specific position.

    Except as noted below, the following memoranda are hereby rescinded and superseded: John Morton, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, March 2, 2011; John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens, June 17, 2011; Peter Vincent, Case-by-Case Review of Incoming and Certain Pending Cases, November 17, 2011; Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems, December 21, 2012; National Fugitive Operations Program: Priorities, Goals, and Expectations, December 8, 2009.

    A. Civil Immigration Enforcement Priorities

    The following shall constitute the Department's civil immigration enforcement priorities:

    Priority 1 (threats to national security, border security, and public safety)

    Aliens described in this priority represent the highest priority to which enforcement resources should be directed:

    (a) aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
    (b) aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
    (c) aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 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;
    (d) 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; and
    (e) 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.

    The removal of these aliens must be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.

    Priority 2 (misdemeanants and new immigration violators)

    Aliens described in this priority, who are also not described in Priority 1, represent the second-highest priority for apprehension and removal. Resources should be dedicated accordingly to the removal of the following:

    (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, provided the offenses arise out of three separate incidents;
    (b) aliens convicted of a "significant misdemeanor," which for these purposes is an offense of domestic violence; 1 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);
    (c) aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously 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.
    These aliens should be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety, and should not therefore be an enforcement priority.

    Priority 3 (other immigration violations)

    Priority 3 aliens are those who have been issued a final order of removal2 on or after January 1, 2014. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.

    In evaluating whether the offense is a significant misdemeanor involving "domestic violence," careful consideration should be given to whether the convicted alien was also the victim of domestic violence; if so, this should be a mitigating factor. See generally, John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, June 17, 2011. 2 For present purposes, "final order" is defined as it is in 8 C.F.R. § 1241.1.

    B. Apprehension, Detention, and Removal of Other Aliens Unlawfully in the United States

    Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of aliens unlawfully in the United States who are not identified as priorities herein. However, resources should be dedicated, to the greatest degree possible, to the removal of aliens described in the priorities set forth above, commensurate with the level of prioritization identified. Immigration officers and attorneys may pursue removal of an alien not identified as a priority herein, provided, in the judgment of an ICE Field Office Director, removing such an alien would serve an important federal interest.

    C. Detention

    As a general rule, DHS detention resources should be used to support the enforcement priorities noted above or for aliens subject to mandatory detention by law. Absent extraordinary circumstances or the requirement of mandatory detention, field office directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. To detain aliens in those categories who are not subject to mandatory detention, DHS officers or special agents must obtain approval from the ICE Field Office Director. If an alien falls within the above categories and is subject to mandatory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance.

    D. Exercising Prosecutorial Discretion

    Section A, above, requires DHS personnel to exercise discretion based on individual circumstances. As noted above, aliens in Priority 1 must be prioritized for removal unless they qualify for asylum or other form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority. Likewise, aliens in Priority 2 should be removed unless they qualify for asylum or other forms of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority. Similarly, aliens in Priority 3 should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.

    In making such judgments, DHS personnel should consider factors such as: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances.

    E. Implementation

    The revised guidance shall be effective on January 5, 2015. Implementing training and guidance will be provided to the workforce prior to the effective date. The revised guidance in this memorandum applies only to aliens encountered or apprehended on or after the effective date, and aliens detained, in removal proceedings, or subject to removal orders who have not been removed from the United States as of the effective date. Nothing in this guidance is intended to modify USCIS Notice to Appear policies, which remain in force and effect to the extent they are not inconsistent with this memorandum.

    F. Data

    By this memorandum I am directing the Office of Immigration Statistics to create the capability to collect, maintain, and report to the Secretary data reflecting the numbers of those apprehended, removed, returned, or otherwise repatriated by any component of DHS and to report that data in accordance with the priorities set forth above. I direct CBP, ICE, and USC IS to cooperate in this effort. I intend for this data to be part of the package of data released by DHS to the public annually.

    G. No Private Right Statement

    These guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

    Updated 11-21-2014 at 02:16 PM by MKolken

  2. Obama’s legacy as the Deporter In Chief won’t be wiped away with a modest measure

    by , 11-14-2014 at 09:38 AM (Matthew Kolken on Deportation And Removal)
    The following statement was issued by the DRM Action Coalition:

    BOLD ACTION NOT MODEST MEASURES IS NEEDED

    Amidst new rumors of the Obama Administration’s upcoming executive order on immigration, the Dream Action Coalition has issued the following statement:

    While we are cautiously optimistic to see that the Administration seems to be moving forward with it’s executive order, we need to remember that this could be an accidental leak, a test balloon from an official leak, or even just a high-level rumor; considering how it’s from an anonymous source, we should keep our skepticism until we see action.

    “Although we are happy to see some common-sense measures like granting status to the parents of citizens and at least some DREAMers, what will happen to the rest of the members of mixed-status families? What of those DREAMers that aged out waiting for DACA?” Said Dream Action Coalition Co-Director Cesar Vargas. “Estimates of those affected from the modest information in the leaks indicate around 3 or 4 million people could attain status through their children, but that would still leave around 7 to 9 million undocumented immigrants out, many of whom would have received status under the bipartisan Gang of 8 bill.”

    “It seems there are a lot of families that will be left out of this, and this doesn’t take into account the people deported that Obama recently said should not have been. What will be the value given towards family reunification for those who have deep roots in the country, a clean record and family waiting to greet them upon their return? While we know that Obama can only do patchwork immigration relief, we know that he has broad authority, and could go big and offer deportation relief and working papers to many more than just a few million,” said Erika Andiola, Co-Director of Dream Action Coalition.

    “Obama’s legacy as the ‘Deporter In Chief’ won’t be wiped away with a modest measure that doesn't change the record-setting deportation rate of his Administration,” continued Erika.
  3. NDLON Reaction to Rumors of Pending Executive Action to Suspend Deportations

    by , 11-13-2014 at 02:44 PM (Matthew Kolken on Deportation And Removal)
    For immediate release

    Contact: B. Loewe, NDLON, 773.791.4668, bloewe@ndlon.org

    NDLON: Less Leaks, More Action from White House
    Senate Bill Framework will be yardstick to measure Progress

    (Washington DC) In reaction to rumors reported by Fox News and the New York Times and comments during the White House Press Briefing, Pablo Alvarado, Executive Director of the National Day Laborer Organizing Network issued statement from Washington DC:

    "We need less leaks and more action from within the White House. As far as we're concerned, the rumors reported in the Times and by Fox change nothing. They are rumors. For well over a decade, immigrants have been harmed by trial balloons, false promises, and a poisonous political environment in Washington DC that reduces migrant lives to pawns in partisan games.

    We call upon the President to provide work authorization minimally to those who would qualify for the Senate bill. Today, Josh Earnest said President Obama would sign it were the House to pass it. The same standard that the President is using to judge the House is the standard that immigrants will use to judge executive action. Will the President build upon, or undermine, the bipartisan Senate bill framework?

    We call upon President Obama to fully end the Secure Communities program which has been a catastrophic failure that caused the Arizonification of the country.

    And we call upon the President to meet immediately with undocumented immigrants and those who are most impacted by, and therefore most expert on, the status quo.

    Immigrant rights have been held hostage by failed political maneuvers for too long. Those who have forced this debate to the forefront of the national agenda have done so through struggle and sacrifice, through courageous civil disobedience, protest, and lawsuits that seek refuge in federal courts. In addition to doing necessary work for the US economy, immigrants have taken on the work of defending cherished national values. And we will keep fighting until immigrants achieve full equality. The President can see to it that we wait not one more day. Until then, we keep fighting."

    MEDIA AVAILABILITY: Pablo Alvarado is available in Washington, DC.

    A
    dditionally today, NDLON filed suit against the Department of Homeland Security to halt deportations and expand relief to the fullest extent under the law. More Details on the suit can be found athttp://notonemoredeportation.com/resources/rulemaking
  4. Allegations of Improper Hiring Practices in Immigration Court System

    by , 11-10-2014 at 09:58 AM (Matthew Kolken on Deportation And Removal)
    From the Department of Justice, Office of the Inspector General:

    The Department of Justice Office of the Inspector General (OIG) today released a report examining allegations of improper hiring practices by senior officials in the DOJ Executive Office for Immigration Review (EOIR). The OIG’s investigation focused on possible violations of the federal nepotism prohibition and other personnel rules arising from the hiring of four students who were relatives of the three most senior officials in the organization – EOIR Director Juan Osuna, Chairman of the Board of Immigration Appeals (BIA) David Neal, and Chief Immigration Judge Brian O’Leary. We also found that the practice of hiring relatives of employees into Student Temporary Employment Program (STEP) positions in EOIR generally was widespread, constituting 16% of hires into the program from 2007 through 2012.

    The OIG’s specific findings included:

    • In April 2008, Juan Osuna, then Acting Chairman of the BIA, conveyed his niece’s interest in a paid student position at EOIR to a direct subordinate, passed along his niece’s resume to that subordinate, and then more likely than not participated in the decision to place his niece in a position at EOIR that put her below him in the chain of command. In January 2009, Osuna took steps to secure his niece’s return to EOIR. We concluded that this involvement violated several statutes and regulations, including the federal nepotism statute and the Standards of Ethical Conduct for Employees of the Executive Branch.
    • In 2010, David Neal, then Acting Chairman of the BIA, violated the nepotism statute in connection with conveying his son’s qualifications for a summer internship to an EOIR employee. In 2007, Neal, then Chief Immigration Judge, approached other EOIR employees about his daughter’s interest in internship positions at EOIR, and conveyed his daughter’s resume to an EOIR employee, though there was insufficient evidence as to what he said to determine if he advocated for his daughter’s appointment in violation of the federal nepotism statute or the Standards of Ethical Conduct. However, we found Neal exercised poor judgment with regard to his daughter’s appointment because he should have known, given his status as a senior official in EOIR, that arranging to send her resume to subordinates would inevitably create pressure on them to take action on her behalf.
    • In 2009, Brian O’Leary, then an Immigration Judge, intervened in the hiring process in an effort to ensure his daughter would be selected for an internship in one unit of EOIR rather than another. We found that O’Leary’s involvement violated the Standards of Ethical Conduct, which prohibit an employee from using his public office for the private gain of relatives.

    Although the OIG’s investigation was focused on the conduct of Osuna, Neal, and O’Leary, we learned that the practice of hiring relatives of employees into STEP positions in EOIR was widespread. We found that, from 2007 to 2012, 32 of the 200 students hired into STEP positions had relatives working at EOIR. Multiple EOIR officials confirmed that hiring relatives for paid student positions was a standard practice or commonplace.

    The OIG’s review was initiated as a result of information voluntarily disclosed to the OIG by EOIR. In July 2012, the OIG issued a public report on improper hiring practices in the Justice Management Division. Shortly thereafter, EOIR Director Osuna ordered an internal review of the hiring practices at EOIR. Senior Officials in EOIR also put in place a new anti-nepotism policy consistent with the OIG’s recommendations in the JMD report. EOIR subsequently informed the OIG that its internal review revealed that numerous students hired into EOIR through the STEP had relatives at EOIR when they were hired.

    The OIG’s report notes that EOIR and Department leadership have begun taking steps to eradicate improper hiring practices, including adopting policies requiring an applicant’s relative to certify that he or she has not participated in any manner related to the component’s consideration of the application, and requiring the hiring official to give a certification aimed at avoiding the granting of unauthorized preferences. EOIR has also informed the OIG that it intends to provide agency-wide training regarding nepotism. While these steps are commendable, the OIG’s report recommends that EOIR take additional action to modify its training to focus not only on the need to avoid improper advocacy, but also to emphasize the broader provisions of the Merit Systems Principles and Prohibited Personnel Practices that prohibit the granting of unauthorized preferences to relatives.

    The report can be found on the OIG’s website at: http://www.justice.gov/oig/reports/2014/s1502.pdf.
  5. Congresswoman Calls for Investigation of Sexual Abuse of Mothers in Detention

    by , 10-30-2014 at 07:52 AM (Matthew Kolken on Deportation And Removal)
    October 29, 2014
    FOR IMMEDIATE RELEASE
    CONTACT
    Ben Soskin
    (202) 225-1766
    Benjamin.Soskin@mail.house.gov


    PRESS ADVISORY: Rep. Roybal-Allard Joins Immigrant Rights Groups in Calling for Investigation of Sexual Abuse of Mothers in Detention
    Questions the Continued Incarceration of Migrant Families

    Washington, DC – On Thursday, October 30th, at 11:30am EST/8:30am PST, Congresswoman Lucille Roybal-Allard (CA-40) will speak on a press call to discuss the need for a thorough, independent investigation of sexual abuse allegations at a detention center in Karnes, Texas, used to detain migrant mothers and their young children. Joined by the Lutheran Immigration and Refugee Service (LIRS) and the Women's Refugee Commission (WRC), the Congresswoman will explain why the incarceration of migrant families is costly, unnecessary, and inappropriate for vulnerable women and children fleeing violence in their home countries. Many of the women held at Karnes are victims of sexual or domestic violence from Central America, and came to the U.S. seeking refuge from their abusers.

    The press call is timed to coincide with the release of a new report by LIRS and WRC, Locking Up Family Values, Again, which documents allegations of abuse, violations of due process, and poor conditions at family detention centers.

    WHEN: 11:30am EST/8:30am PST on Thursday, October 30th, 2014

    WHERE: Please use the following number to dial in: 877-888-4314
    Conference ID: Values

    WHO: Congresswoman Lucille Roybal-Allard (CA-40)
    Michelle Brané, Director for Migrant Rights and Justice Program, Women’s Refugee Commission
    Liz Sweet, Director for Access to Justice, Lutheran Immigration and Refugee Service
    Christina Brown, Lead Attorney, AILA Artesia Pro Bono Project
    Rebecca van Uitert, Attorney - Fragomen Worldwide
    *Additional Participants TBC

    ###

    About The Women’s Refugee Commission
    The Women’s Refugee Commission works to improve the lives and protect the rights of women, children and youth displaced by conflict and crisis. For more information, visit http://womensrefugeecommission.org.

    About Lutheran Immigration and Refugee Service
    Founded in 1939, LIRS is nationally recognized for advocating for and with refugees, asylum seekers, unaccompanied children, immigrants in detention, families fractured by migration and other vulnerable populations, and for serving migrants through 60 grassroots legal and social service partners across the United States. Celebrating 75 years of service and advocacy this year, LIRS has helped more than 500,000 migrants and refugees rebuild their lives in America. http://www.lirs.org

    About the American Immigration Lawyers Association (AILA)
    The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. For more information visit http://www.aila.org.

    ###
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