New Strategy: ICE Restricts Deportation of Undocumented Immigrant to Criminals, Setting the Stage for Immigration Reform in 2013
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New Strategy: ICE Restricts Deportation of Undocumented Immigrant to Criminals, Setting the Stage for Immigration Reform in 2013

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December 30, 2012, 2:49 pm
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ICE discontinues use of detainers against people arrested for minor misdemeanor offenses such as petty crimes and traffic offenses.
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In what appears to be the direction of U.S. immigration laws for the future, ICE has issued new national detainer guidance that eliminates the fear of deportation for most non-criminal aliens.

This guidance restricts the use of detainers to those who meet the department's enforcement priorities and curbs the use of detainers against people arrested for minor misdemeanor offenses such as petty crimes and traffic offenses.  The new detainer guidance is intended to make certain that available resources are focused on apprehending felons, repeat offenders and other ICE priorities.

Immigration and Customs Enforcement Director John Morton has issued the latest guidance memo to the field directing the agency's officers only to ask for  local law enforcement agencies to detain individuals accused of serious offenses. The memo states:

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 of a firearm or other deadly weapon;
6.    the distribution or trafficking of a 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.

"Smart and effective immigration enforcement relies on setting priorities for removal and executing on those priorities," explained Director Morton. "In order to further enhance our ability to focus enforcement efforts on serious offenders, we are changing who ICE will issue detainers against. While the FY 2012 removals indicate that we continue to make progress in focusing resources on criminal and priority aliens, with more convicted criminals being removed from the country than ever before, we are constantly looking for ways to ensure that we are doing everything we can to utilize our resources in a way that maximizes public safety."

In an effort to maintain its’ resources on priority cases ICE has implemented policies and processes that ensure that those enforcing immigration laws make suitable use of the discretion they have in determining the types of individuals prioritized for removal from the U.S. 

Most importantly, ICE will not to renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program. (The program that empowered the much criticized Arizona Senate Bill 1070). The Arizona Act made it a state misdemeanor crime for an alien to be in Arizona without carrying the required documents and required that state law enforcement officers attempt to verify an individual's immigration status during a "lawful stop, detention or arrest", or during a "lawful contact" when there is reasonable suspicion that the individual is an undocumented immigrant.

Critics of the legislation argued that it promotes racial profiling, while supporters say the law prohibits the use of race as the sole basis for investigating immigration status. In over 70 U.S. cities there were  protests in opposition to the law

In June 2012, the U.S. Supreme Court ruled on the case Arizona v. United States.  While the ruling upheld the provision requiring immigration status checks during law enforcement stops, it struck down provisions that gave the law it's power.

Now with Morton’s latest memo, 13 million undocumented immigrants can take a deep breath while waiting for comprehensive immigration reform laws to be enacted in 2013.

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Author: Moises Apsan
Attorney with over 32 years of experience. Past president Federal Bar Association NJ Chapter (1997-2002). Offices in Astoria, NY, Newark, NJ. Tel: 877-873-8510 http://www.apsanlaw.com and drmoises.com
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