The ICE Priority Memos: What do they Mean?

September 2, 2010

Under the Obama Administration, Immigration and Customs Enforcement (ICE) is prioritizing the enforcement of immigration laws against non-citizens who pose a danger to the public or a threat to national security. In an enormous immigration enforcement, detention, and court system, this is a complex task. In recent months, ICE has issued two internal memoranda to guide immigration officers’ decisions. Neither memo changes the law or grants new forms of immigration relief to anyone.

ICE Memo #1: On June 30, 2010, ICE issued a memo regarding its Civil Enforcement Priorities.[1] Given that ICE lacks resources to apprehend and deport all individuals present without valid immigration status, the memo delineates levels of priority for removal operations, emphasizing threats to public safety and national security, and accordingly as directs ICE officers to use greater discretion in whom they detain. The June 30 memo acknowledges that ICE officers have prosecutorial discretion, and notes that “particular care should be given when dealing with lawful permanent residents, juveniles, and the immediate family members of U.S. citizens.”

ICE Memo #2: On August 20, 2010, ICE issued a narrow memo regarding the processing of certain cases in the immigration courts.[2] This memo focuses exclusively on immigrants who simultaneously have an application or petition for legal status pending before U.S. Citizenship and Immigration Services (USCIS) while facing removal proceedings in immigration court. The memo states that as of July 2009, there were at least 17,000 individuals in this situation. (Compare this to the nearly 400,000 people ordered removed in 2009.)   The memo counsels better communication between two branches of the Department of Homeland Security (DHS) where an immigrant on the one hand appears eligible for a benefit pending before USCIS (such as a green card), but on the other hand ICE is seeking the individual’s deportation before the immigration court. This policy is largely a measure to reduce unnecessary adjudications by different components of the Department. Under this memo, these particular cases will be fast-tracked for resolution at USCIS. Meanwhile, ICE should dismiss the cases in immigration court unless there are factors weighing against dismissal, such as public safety concerns. If USCIS approves a benefit for someone in this circumstance, the person is granted permission to remain legally in the United States. If the benefit is denied, ICE has authority to re-initiate removal proceedings. The dismissals advised in this memo will not result in the granting of any immigration status or work authorization. Immigration benefits must be specifically granted by USCIS or an immigration judge.

[1] John Morton, “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens,” Immigration and Customs Enforcement, June 30, 2010, available at:

http://www.ice.gov/doclib/civil_enforcement_priorities.pdf

[2] John Morton, “Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions,” Immigration and Customs Enforcement, August 20, 2010, available at:

http://www.ice.gov/doclib/dro/pdf/aliens-pending-applications.pdf

TALKING POINTS AND REACTIONS

For Media:

  • This is not a “backdoor amnesty.”       Neither policy creates any form of legalization or grants anyone legal status.
  • Both of these policy directives are common sense prioritizations of resources and people power by ICE, and reduce strain on the immigration courts. The June memo clarifies how ICE agents, attorneys, and field office directors should prioritize their workload. The August memo addresses a longstanding tangle between ICE and USCIS cases.
  • The immigration courts are clogged with cases.  (Cases pending before the immigration courts reached a new all-time high of 247,922 in June 2010[1]). While this memo potentially alleviates the doubling up of resources on a narrow category of cases, ICE continues to deport record numbers of people each year.  In FY 2009, nearly 400,000 people were returned to their country of origin.[2]
  • The memo is a welcome clarification, but ultimately is another small band-aid that addresses the symptoms of a much bigger problem: our immigration system is broken and only Congress can make the necessary and fundamental changes needed to fix it.
  • Guidance issued by ICE on August 20, 2010, clarifies that immigrants who have ripe petitions pending for immigration relief shouldn’t contribute to the deportation proceedings logjam while their petitions are being adjudicated.  It simply isn’t efficient or intelligent for ICE to process the same case in immigration court that is being considered for relief by USCIS.

For Inquiries from Affected Individuals:

  • The August 20 ICE memo potentially affects cases in immigration court for those who have applied and appear eligible for a grant of legal status from USCIS.   A visa must currently be available, meaning that many waiting in the visa backlog, whose priority dates are not current, will not benefit from these changes. USCIS will continue reviewing these cases and a denial could trigger a re-initiation of deportation proceedings.
  • These changes may mean that you or your attorney can seek to get your deportation case dismissed in immigration court while you await final approval from USCIS. If you succeed in having the charges dismissed, then proceedings against you will end. However, ICE may re-initiate proceedings at any time.
  • Having your case dismissed does not grant you any legal status or work authorization.
  • These policies do not mean that DHS will only deport those who have committed serious crimes. ICE is directing greater effort at those individuals, but anyone without legal status is at risk of deportation.
  • It is critical that individuals with cases in immigration court continue to attend their hearings and comply with all court orders.
  • If you have specific questions about how these policies may affect you, it is best to contact an immigration lawyer.       Every case is different. If you do not have an immigration lawyer, referrals are available via this website: http://www.ailalawyer.com/

[1] “Immigration Case Backlog Continues to Grow,” Transactional Records Action Clearinghouse, August 12, 2010, available at: http://trac.syr.edu/immigration/reports/235/.

[2] “Enforcement and Removal Statistics,” Immigration and Customs Enforcement, available at:

http://www.ice.gov/doclib/dro/removals2007-2010_072710.pdf

[1] John Morton, “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens,” Immigration and Customs Enforcement, June 30, 2010, available at:

http://www.ice.gov/doclib/civil_enforcement_priorities.pdf

[1] John Morton, “Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions,” Immigration and Customs Enforcement, August 20, 2010, available at:

http://www.ice.gov/doclib/dro/pdf/aliens-pending-applications.pdf

[1] “Immigration Case Backlog Continues to Grow,” Transactional Records Action Clearinghouse, August 12, 2010, available at: http://trac.syr.edu/immigration/reports/235/.

[1] “Enforcement and Removal Statistics,” Immigration and Customs Enforcement, available at:

http://www.ice.gov/doclib/dro/removals2007-2010_072710.pdf