Enforcement Priorities

May 18, 2018 § Leave a comment

Historically since 1996, Immigration policies have guided officials to prioritize arrests and investigations involving undocumented individuals. Top priority was given to those individuals charged with felonies and other high crimes. However, the Trump administration announced in January of 2017 through an executive order, “Enhancing Public Safety in the Interior of the United States”, that priority has been given a new meaning. Immigration forces have been directed to make any unauthorized individual at risk for being deported or arrested, regardless of how long they have been in the United States, how obedient they have been to United States laws, or how many of their relatives are U.S. citizens. The order also stripped money from sanctuary cities.

We have already seen an increase in arrests of undocumented individuals. Since fiscal year 2016, ICE arrests have increased by 42 percent. While ICE reported that 92 percent of these arrests were being charged or had been convicted for a criminal offense, it was found that they used the term “criminal offense” for traffic violation and other minor and non-violent offenses.

Setting these enforcement priorities allows law enforcement to have wiggle room for discretion. Discretion is the choice that officers, prosecutors and judges must determine if they want to pursue a case. Discretion plays an important role in a functioning justice system, primarily serving to make an effective use of the justice system’s limited resources, as there simply aren’t enough police, prosecutors, and other criminal justice personnel to act against every person who has broken the law, no matter how minor the offense.

Under the Obama administration and pursuant to the Morton Memo from 2010 that was rescinded and released again in 2011, law enforcement was told to give priority to those individuals who:

  1. Were threats to public safety or national security, specifically those with criminal convictions
  2. Undocumented migrants who recently crossed the border
  3. Migrants who didn’t heed a previous order of removal, or who re-entered after being deported

A criticism of the 2010 Morton memo was that it lumped individuals together who were convicted of very different crimes (for example: shoplifting and murder are two very different criminal convictions). Another issue with the memo is that the peopled referred to in numbers two and three often don’t know they are breaking immigration laws. The Obama administration realized their mistakes and wrote a more specific memo in June of 2011.

A concern of having no priorities set in place is that while we are catching undocumented individuals, we could be missing those who are actually a threat to society.

A November 2014 memo written by then-DHS secretary Jeh Johnson rescinded the 2010 Morton Memo. The Johnson Memo referred to not just ICE, but the entire Department of Homeland Security. The Johnson Memo was very similar to the Morton Memo, giving priority to those individuals who:

  1. are threats to national security, border security (specifically individuals who were arrested while attempting unlawful entry), and public safety
  2. misdemeanants and new immigration violators (including anyone apprehended after unlawfully entering the U.S. and who had not been present in the United States since January 1, 2014)
  3. “other immigration” violators, specifically those who had been issued a final order of removal on or after January 1, 2014

The Johnson Memo also elaborated on the extent of discretion. Johnson stated that discretion should not be limited to the prosecutorial processes of issuing, serving, filing, or cancelling a Notice to Appear, but should also include other discretionary decisions regarding enforcement such as “whom to stop, question, and arrest; whom to detain or release; whether to settle, 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”.

In February of 2017, then-DHS Secretary John Kelly strictly adjusted the limitations of discretion. For example, the Kelly Memo directed that officials should consult with the head of their department before making discretionary decisions. The Kelly Memo also directed the director of ICE to “immediately reallocate any and all resources that are currently used to advocate on behalf of illegal aliens…  to the new VOICE Office (Victims of Immigration Crime Engagement), and to immediately terminate the provision of such outreach or advocacy services to illegal aliens”.


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