Key Questions Surrounding ICE’s New Immigration Enforcement Policies
Following is an article from America’s Voice en Español. It has been translated from Spanish to English and is available for reprint as long as the author is given proper credit.
The Spanish language version, “¿Quiénes son prioridad de deportación?,” is available online here.
Who are considered priorities for deportation?
March 25, 2015
As the world awaits resolution of the legal case that has paralyzed immigration executive actions ordered by President Barack Obama in November 2014 to stop the deportation of some 5 million undocumented immigrants, potential beneficiaries of the revised Deferred Action for Childhood Arrivals (DACA) program and the new Deferred Action for Parental Accountability (DAPA) plan remain in limbo.
There’s a general state of anxiety in the immigrant community over the fear of being detained and deported despite the fact that in November 2014 the government also issued memoranda about the prosecutorial discretion authorities that immigration officials have when dealing with an undocumented person. The goal of these memoranda was to prioritize detention and deportations of those who really pose a threat to national security and our communities.
Last week ICE deported a young Honduran man from Iowa, the father of four U.S. citizen children and husband of a DACA beneficiary, and the case brought to light whether Max Villatoro’s history—namely a driving under the influence conviction from nearly twenty years ago, when he was 24, and purchasing a Social Security number to obtain a driver’s license—made him a priority for deportation according to the United States government.
Max’s lawyer, David Leopold, past president of the American Immigration Lawyers Association, argued that Villatoro—who had transformed his life since then, becoming a Mennonite pastor and community leader—should not be deported to his native Honduras. According to Leopold, Villatoro does not represent a threat to national security. A national campaign in support of Max obtained more than 40,000 signatures expressing support for Villatoro.
The question is, who is really a priority for deportation under these new guidelines?
Following are questions and answers regarding the 2014 memorandum, signed by the Secretary of the Department of Homeland Security (DHS), Jeh Johnson:
1. Which individuals are considered to be of the highest priority for deportation, the ones who merit the greatest focus?
The document is very clear in this respect: those who present a threat to national security, border security, or public safety.
2. Is there a specific classification for these cases?
Yes, the document identifies the following cases as the highest priority, among others: foreign-born individuals involved in (or suspected to be involved in) terrorism or espionage; those caught attempting to enter the U.S. without authorization along the border or at ports of entry; those convicted of crimes related to their active participation in a criminal gang; or those over 16 years old who intentionally participate in gang activities that further the illegal activity of this group.
3. Does the memo focus on any other crimes?
Effectively, there are other priorities considered to be less important, but they still need to be taken into account. They include the following (among others): foreign-born individuals convicted of three or more misdemeanors other than minor traffic violations; those convicted of a “significant misdemeanor” such as domestic violence, sexual abuse, or exploitation; robbery; illegal possession of firearms; drug distribution or trafficking; or driving while intoxicated.
4. Can immigration officials exercise prosecutorial discretion once they take someone into custody?
Of course. In fact, this is the most sensible part of the document, as it asks DHS personnel to exercise discretion based on individual circumstances, above all whether the person does not pose a threat to national or border security or public safety. The factors to take into consideration include: any extenuating circumstances related to the crime; length of time an individual has lived in the country; military service; family and communities ties in the United States; status as a victim, witness, or litigant in civil or criminal investigations; and humanitarian considerations such as medical status, age, or other factors.
Regarding this, Leopold explains that the deportation priorities memo, in the section on “significant misdemeanors,” gives no time-limit for consideration of offenses. He says “ICE considered Max a priority for deportation because of a DUI from 1998, which took place when he was in his twenties, involved no accident and hurt no one.”
He adds, “what ICE—and I believe the Director of ICE, Sarah R. Saldana—ignored was the final paragraph of Priority 2 in the memo, which says that these individuals should be deported 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.”
For Leopold, “it’s the difference between reading the priorities memo like it is a checklist for deportations, or a guide that allows the use of common sense.”
