ICE No Longer Honoring New Prosecutorial Discretion Memo
Immigration lawyer Bryan Johnson has shared that a Deportation Officer at the Varick Street Detention Center in New York advised that Immigration and Customs Enforcement is no longer honoring the November 20, 2014 prosecutorial discretion memorandum due to Judge Hanen's injunction. The officer went so far to say that, and I quote, the memo has been "ripped off the wall." Newark Enforcement and Removal has confirmed this change in policy.
I have also been told that individuals that are considered a level 3 priority (the lowest priority) are being taken into custody for removal when they report for supervision. This includes parents of United States citizens that are DAPA eligible. Immigration lawyer Matthew Archambeault has indicated that this has been confirmed by ICE in Charlotte. There have been reports from immigration lawyers all over the country of their clients being taken into custody.
From the Carolinas Chapter of the American immigration Lawyers Association:
"ICE is now implementing its new policy of enforcement in accordance with the November Executive Action. But for those who have not yet received that desperate call from the client who has been taken into custody at his ICE check in, this is it: If the foreign national has a significant misdemeanor (most often arising in the form of a DUI/DWI) conviction or 3 misdemeanors or a final order after 1/1/14, he will be taken into custody when he checks in with ICE. If he is not checking in with ICE, he stands a chance of getting the knock on the door at 5:00 am. Individuals are being taken into custody even if they are currently in removal proceedings in Charlotte. They are being transferred to Stewart with no holds. ICE has been given the instructions NOT to take into consideration DACA or DAPA eligibility in such detention decisions."
Immigration lawyer Marty Rosenbluth responds: "It is happening all over. And of course if you don't show up for your appointment you are a fugitive and they knock on your door at 5:00 in the morning."
These directives have apparently come directly from HQ in Washington and are not the acts of rogue agents. It is absolutely imperative that you advise your clients accordingly.
UPDATE: Immigration lawyer Mo Goldman reports that Tucson/Phoenix ICE ERO has indicated they are no longer honoring the Nov. 20, 2014 memo as it relates to Expanded DACA/DAPA applicants (except they are making an emphasis on Deportation Priorities).
UPDATE: New Orleans ICE office is ignoring prosecutorial discretion memo and is taking DAPA eligible parents into custody to effectuate removal. Assistant Field Office Director Brian Acuna stated that ICE NOLA no longer needed to consider eligibility for DAPA since the court had enjoined the DAPA and expanded DACA programs.
UPDATE: Immigration lawyer Amy Maldanado has advised that a St. Louis Enforcement and Removal Officer has indicated that ICE isn't following the prosecutorial discretion memorandum even for non-priority cases due to the Federal Court injunction. He further advised that they are following "some other guidelines." The Officer did not elaborate further.
UPDATE: ICE has confirmed that it was instructed to remove expanded DACA and DAPA flyers from detention areas. AILA Doc. No. 15022762
UPDATE: The ICE ERO Detention Reporting and Information Line confirms the following:
Until further guidance is given, ICE will not consider the new DAPA and expanded DACA guidelines in cases for exercising prosecutorial discretion. ICE will also not use these guidelines to determine whether individuals may request deferred action or to refer individuals to USCIS.
UPDATE: Courtesy of Charlotte immigration lawyer Benjamin Snyder. Office of Chief Counsel in Charlotte has declined prosecutorial discretion for an individual that is not a priority under the Nov. 20, 2014 memo. Moreover, Charlotte ICE is raiding homes looking for individuals with prior removal orders and is taking people into custody regardless of the nonexistence of a criminal record or DACA/DAPA eligibility.
UPDATE: Courtesy of St. Louis immigration lawyer Raymond Reza Bolourtchi: A St. Louis Enforcement and Removal Officer (ERO) has advised that 1. The November 20, 2014, REMOVAL PRIORITY MEMO remains in full force and effect; 2. ERO has received an e-mail from Headquarters informing all officers that (prospective) DAPA eligibility is NOT to be used any longer as a factor or criteria for the time being; and 3. DWI-DUI convictions remain a priority for removal enforcement.
UPDATE: Past AILA President Chuck Kuck advises that Atlanta ICE has indicated that they are employing a no bond policy for detained immigrants with convictions, regardless of whether immigration consequences attach, and are disregarding potential DAPA/DACA eligibility for consideration of prosecutorial discretion.
UPDATE: Milwaukee based immigration lawyer Davorin Odrcic reports that in Wisconsin ICE is detaining immigrants without bond regardless of individualized circumstances. ICE has indicated that this "no bond" policy is not a creation of local ICE and is coming directly from HQ in Washington. Individuals being held without bond include those that are DAPA eligible as well as having other forms of relief from removal outside of the expansion of executive action. There are multiple examples of individuals being detained by ICE and held with no bond that have a citizen spouse and children, and who have been inside the country for 10+ years rendering them eligible for cancellation of removal.
UPDATE: ICE Northeast Regional Communications Director Khaalid Walls has indicated that the agency interprets mere visa overstays as an abuse of the visa or visa waiver programs that renders an individual a priority for deportation.
UPDATE: I can report that in open court today the Trial Attorney representing the Department stated that Office of Chief Counsel has been given specific instructions from Washington that all detained clients are considered a deportation priority regardless of their eligibility for bond, and have been instructed to oppose release from custody. He then reserved appeal on the IJ's bond re-determination for a client without so much as a traffic ticket on the basis that he is a flight risk.
UPDATE: (5-11-15) Immigration lawyer Matthew Archambeault reports the following: "ICE Office from Newark Field Office told me that due to the priorities memo they feel they no longer are able to exercise discretion so if they pick you up for detention they will not issue a bond and will leave it up to the judge. They do not want to use their discretion to put a bond on a person, because they believe they no longer have discretion, even if you are not considered a priority." Mr. Archambeault explained that ICE is now issuing a memo to individuals taken into custody that explains the basis for their detention.