Secure Communities is Out, and ICE Detainers Replaced with “Notifications”

The Department of Homeland Security is ending the controversial Secure Communities program.  They have not said what mechanism will replace Secure Communities.  DHS wants the new system to be more closely tied to its enforcement priorities so that people with no criminal record and extensive ties to the U.S. do not wind up in deportation proceedings.  The federal government will greatly limit its use of requests for detention by local authorities, and instead ask that local agencies simply notify ICE of the impending release of someone in custody.

Enforcement priorities

Starting January 5, 2015, DHS will use the following criteria to evaluate people they encounter who are deportable under the immigration law.  The idea is to focus enforcement resources on people who recently arrived or who do not deserve discretion in the eyes of the government because of a criminal, gang or national security record.

A)     1st priority:          

–         National security threats;

–         People apprehended at the border while attempting to enter unlawfully;

–         Gang members (16 years and older);

–         Convicted felons under state felony laws; and

–         Convicted “aggravated felons” as defined by the Immigration and Nationality Act.

B)     2nd priority:

–         Conviction for three or more misdemeanors (excluding minor traffic offenses);

–         Conviction for significant misdemeanors (including domestic violence, sexual abuse, etc. or  an offense for which the sentence was 90 days or more);

–         People apprehended anywhere in the U.S. after unlawful entry unless they can prove they were physically present in the U.S. since January 1, 2014; and

–         People who have significantly abused the visa or visa waiver programs.

C)     3rd priority:

–         People with final orders of removal issued on or after January 1, 2014

DHS officers continue to retain complete discretion in removing non-priority foreign nationals who do not fit in any of the above categories, as needed. Detention of people who are sick, pregnant, disabled, elderly, or are primary caretaker for children, is discouraged, unless absolutely required. The government has also provided a list of additional factors that agents may use when determining whether to enforce or exercise prosecutorial discretion.