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Greg Siskind on Immigration Law and Policy

New ICE Memo Calls for Detainers Only of Serious Criminals

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Immigration and Customs Enforcement Director John Morton has issued a new guidance memo to the field directing the agency's officers only to call on local law enforcement agencies to detain individuals accused of serious offenses. According to the guidance:

Consistent with ICE's civil enforcement priorities and absent extraordinary circumstances, ICE agents and officers should issue a detainer in the federal, state, local, or tribal criminal justice systems against an individual only where (1) they have reason to believe the individual is an alien subject to removal from the United States and (2) one or more of the following conditions apply:

  • the individual has a prior felony conviction or has been charged with a felony offense;

  • the individual has three or more prior misdemeanor convictions;

  • the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if

  1. the misdemeanor conviction or pending charge involves violence, threats, or assault;

  2. sexual abuse or exploitation;

  3. driving under the influence of alcohol or a controlled substance;

  4. unlawful flight from the scene of an accident;

  5. unlawful possession or use ofa firearm or other deadly weapon;

  6. the distribution or trafficking ofa controlled substance; or

  7. other significant threat to public safety;

  • the individual has been convicted of illegal entry pursuant to 8 U.S.C. 1325;

  • the individual has illegally re-entered the country after a previous removal or return;

  • the individual has an outstanding order of removal;the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or

  • the individual otherwise poses a significant risk to national security, border security, or public safety.

The New York Times covered the announcement in an editorial this morning and answered the question of how this differs from existing ICE policy for the last two and half years:

But wait, you ask, shouldn't ICE have been doing this all along? Didn't Mr. Morton say in a memo
two years ago that ICE would use its "prosecutorial discretion" to
focus on the most dangerous illegal immigrants? He did. But for nearly
as long as President Obama has been in office, ICE has been vastly
expanding its deportation efforts, enlisting state and local agencies to
expel people at a record pace of 400,000 a year -- tens of thousands of
them noncriminals or minor offenders. By outsourcing "discretion" to
local cops through a fingerprinting program called Secure Communities,
it has greatly increased the number of small fry caught in an ever-wider
national dragnet.

Some cities and states have resisted cooperating with ICE detainers for
the very reasons of proportionality and public safety that Mr. Morton
cited on Friday. California's attorney general, Kamala Harris, told her
state's law enforcement agencies this month that ICE had no authority to force them to jail minor offenders who pose no threat.

Secure Communities and indiscriminate detainers have caused no end of
frustration for many police officials, who rely on trust and cooperation
in immigrant communities to do their jobs. They know that crime victims
and witnesses will not cooperate if every encounter with the law
carries the danger of deportation. They have shied away from a federal
role that is not theirs to take.

ICE's announcement seems to make those efforts unnecessary. It puts the
Obama administration on the same page as states and cities that have
tried to draw a brighter line between their jobs and the federal
government's. A stricter detainer policy is better for police and
sheriffs, who can focus more on public safety. It makes people less
vulnerable to pretextual arrests by cops who troll for immigrants with
broken taillights. And it helps restore some sanity and proportion to an
immigration system that has long been in danger of losing both.

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  1. Jack's Avatar
    "small fry caught in an ever-wider national dragnet"

    The euphemistic "small fry" is present in violation of the INA and as deportable under law as any class of deportable alien.
  2. George Chell's Avatar
    After tuesday there wont be any money to deport anyone let alone stopping people from coming in.
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