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Civil Enforcement Priority

Civil Enforcement Priority

This week, the Immigration and Customs Enforcement released FAQs regarding civil enforcement priorities and prosecutorial discretion memorandum giving much needed clarifications for DUI convictions and past DUI convictions, domestic violence conviction, ICE and the extent of its jurisdiction and what constitutes a significant visa abuser.

For some time now, ICE’s top immigration enforcement priority has been those individuals who pose a danger to national security or a risk to public safety. The newly written FAQ’s lay down the following:

  1. Aliens in the United States who were removed and illegally reentered the country before January 1, 2014, but whose prior removal orders were reinstated on or after January 1, 2014, will be evaluated on a case-by-case basis to determine whether their removal would serve an important federal interest.
  2. While determining whether a conviction for driving under the influence (DUI) is a significant misdemeanor under part of Priority 2(b), the elements of the applicable state law must be considered. A conviction (requiring proof beyond a reasonable doubt) for DUI is a significant misdemeanor if the state statute of conviction:
    (1) constitutes a misdemeanor as defined by federal law (the minimum penalty includes imprisonment for more than 5 days but not more than 1 year);
    (2) requires the operation of a motor vehicle; and
    (3) requires, as an element of the offense, either a finding of impairment or a blood alcohol content of .08 or higher.The Secretary’s guidance makes clear that for senior-level officials to determine that such an individual is not an enforcement priority when there are factors indicating that he or she is not a threat to national security, border security, or public safety has to be done on a case-by-case basis.As with all criminal convictions, these factors could include the length of time since conviction, age at the time the offense was committed, sentence and/or fine imposed, whether the conviction has been expunged, and evidence of rehabilitation.In the specific context of DUI offenses, other factors may also include the level of intoxication; whether the individual was operating a commercial vehicle; any additional convictions for alcohol or drug-related DUI offenses; circumstances surrounding the arrest, including presence of children in the vehicle, or harm to persons or property; mitigating factors for the offense at issue, such as the conviction being for a lesser- included DUI offense under state law, and other relevant factors demonstrating that the person is or is not a threat to public safety.
  3. Felony and misdemeanor convictions for theft related offenses, where immigration status is not an explicit element of the offense but may be related to the offense or arrest, DHS may presumptively regard such cases as falling within Priority 1(d), Priority 2(a), or Priority 2 (b), as applicable. Although an immigration officer should be sensitive to the overall circumstances of the arrest and conviction in such cases. Circumstances that may be relevant in such cases include whether DHS was the agency that presented the case for prosecution, whether there is a victim in the case, the nature of any loss or harm experienced by the victim as a result of the crime, the sentence imposed as a result of the conviction (including whether the conviction was subsequently reclassified as a misdemeanor), whether there is any indication that the conviction has been collaterally challenged based on allegations of civil rights violations, and the nature and extent of the individual’s criminal history.
  4. The memorandum’s definition of domestic violence applies to convictions that are crimes of violence (as defined in section 16 of title 18) for acts of domestic violence regardless of how the state law categorizes them. Likewise, INA section 237(a)(2)(E)(i) applies to crimes of violence (as defined in section 16 of title 18) against spouses or domestic partners, both current and former, regardless of how the state law categorizes the offense.
  5. The FAQ’s also explain what “significantly abused visa” under the November 2014 memorandum entails. In determining the same, the DHS will consider the totality of the circumstances in determining whether an alien has “significantly abused the visa” or visa waiver programs for purposes of Priority 2(d).While “significant abuse” is not defined in the immigration laws or the Secretary’s memorandum, it should be interpreted to include intentional violations of the immigration laws that distinguish the alien as a priority because of the noteworthy or substantial nature of the violations or their frequency.It is to be however noted that, overstay of a visa or the period of admission under the visa waiver program does not constitute significant abuse. The length of time an individual has overstayed his or her period of admission as a nonimmigrant should not generally be a factor in the determination. Prior or subsequent immigration violations or an adverse credibility finding are not determinative but are relevant factors to be considered. The commission of fraud when seeking an immigration benefit, at the time of entry, or during the visa application process, is a significant matter that should be considered under the totality of the circumstances.
  6. The memorandum further defines “Otherwise pose a danger to national security” mean for purposes of Priority 1(a) as per the statutory language found in the INA as described by sections 212(a)(3) and 237(a)(4). These sections of the INA, generally captioned under Security and Related Grounds, encompass:
    (1) aliens who have engaged in espionage, sabotage, the illegal export of goods, technology, or sensitive information;
    (2) aliens who have engaged in terrorist activities, including material support of terrorist organizations, solicitation of goods, funds or membership for terrorist acts or terrorist groups and the commission of terrorist activities as defined under the INA; and
    (3) serious human rights violators.

ICE should be guided by the statutory language found in INA sections 208 (b)(2)(A)(i), 212(a)(2)(G), 212(a)(3)(E), and 212(a)(3)(G). These individuals would include aliens described as having engaged in, committed, ordered, incited, assisted, or otherwise participated in severe violations of religious freedom, Nazi persecution, genocide, torture, extrajudicial killings, or use or recruitment of child soldiers, and aliens described as having ordered, incited, assisted, or otherwise participated in persecution.