Tuesday, November 25, 2014

Part of the Obama Plan: Revise Removal Priorities

As fleshed out in some detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One item on the list of immigration initiatives is "Revise Removal Priorities":

"DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014. Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal. This policy also provides clear guidance on the exercise of prosecutorial discretion."

memorandum from DHS Secretary Jeh Johnson outlines how the initiative would be implemented.  It begins:

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 s ettle, 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 discret ion 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 th e particular responsibilities and authorities applicable to their specific position."

The 2011 John Morton memo on prosecutorial discretion is rescinded and superseded.  The immigration enforcement priorities are now stated as:

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

Priority 2 (misdemeanants and new immigration violators)

Priority 3 (other immigration violations)

The memorandum discusses "Execising Prosecutorial Discretion" and states that such discretion  "requires DHS personnel to exercise discretion based on individual circumstances. . . . 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 seriusly 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."

The enforcement guidelines focus on public safety and are more focused than the types of removals seen under the Secure Communities program, which is now abolished.  This might result in removals of more serious criminal offenders than currently is the practice.  The guidelines also make it clear that in exercising prosecutorial discretion, the individual circumstances of the immigrant should be considered.



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