Just last week, the Immigration and Customs Enforcement (ICE) agency issued a document clarifying its enforcement priorities.  As we blogged last year, the Obama Administration ended the controversial Secure Communities program in November 2014, and put in its place a new system of enforcement priorities.

The new Frequently Asked Questions (FAQs) section on ICE’s website is mostly just another summary of the same priorities announced in November.  However, it also provides a few more useful details and better defines some of the sub-categories of people who are considered a priority for deportation.

First, what are the basic enforcement priorities?

1st priority:

    a. National security threats;
    b. People apprehended at the border while attempting to enter unlawfully;
    c. Gang members (16 years and older);
    d. Convicted felons under state felony laws; and
    e. Convicted “aggravated felons” as defined by the Immigration and Nationality Act.

2nd priority:

    a. Conviction for three or more misdemeanors (excluding minor traffic offenses);
    b. Conviction for significant misdemeanors (including driving under the influence, domestic violence, sexual abuse, etc. or  an offense for which the sentence was 90 days or more);
    c. 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
    d. People who have significantly abused the visa or visa waiver programs.

3rd priority:

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

What is new in the ICE FAQs?

The most significant new information concerns:

  • Treatment of juvenile adjudications and expunged convictions,
  • DUI consequences,
  • Domestic violence consequences,
  • ICE’s definition of “significantly abused the visa or visa waiver programs,” and
  • ICE’s definition of “danger to national security.”

How will ICE treat juvenile adjudications?

People under age 18 who are arrested in this country are normally not subject to the same criminal justice system as adults.  Unless they are specifically treated as adults and convicted in adult court, any crimes committed by children are judged in the Juvenile Courts.  Instead of being convicted, children are “adjudicated delinquent.”  The decision to punish a child for committing a crime is in general not a “conviction” for immigration purposes.

In the new FAQs, ICE conforms to this general idea that juveniles are less culpable than adults, and writes that a juvenile adjudication does not count as a conviction for enforcement.  So, a juvenile adjudication will not, by itself, trigger Enforcement Priorities 1d, 1e, 2a, or 2b.

How will ICE treat expunged convictions?

Some states allow people to have convictions from the past to be erased, or expunged.  This means employers cannot access the records, and in general a criminal record that has been expunged does not count against a person.  However, the big exception to this rule that all non-U.S. citizens need to understand is that the immigration agencies can still see and use expunged offenses against them.  Let’s say it again, just because something was expunged does not mean immigration can’t see it.  They can.

Note!  People who are considering expungement but who are not yet U.S. citizens should be careful to obtain multiple certified copies of the judge’s order in a criminal case before expunging.  This is because disposition documents will not be able after expungement.

ICE clarifies that they may treat expunged offenses differently, which is interesting.  The FAQs say expunged offenses will be treated on a “case-by-case basis,” rather than automatically triggering the Enforcement Priorities 1d, 1e, 2a and 2b.  Expungement may be worth consideration for individuals with old convictions that may place them in an enforcement priority category.

DUI consequences

Driving Under the Influence, or DUI, is now a specific Enforcement Priority, fitting into the significant misdemeanor category at 2b.  Ever since the November 2014 enforcement memorandum came out, ICE has detained a large number of people with old and new DUI convictions alike.  For example, 60 people were arrested in Atlanta this week based on the enforcement priorities, 43 of whom fit the 2b category.

Basically, a DUI makes non-U.S. citizens a target for enforcement if they are already deportable under the law.  The new ICE FAQs specify that the elements of the state statute have to match the following:

  • DUI is a misdemeanor punished by between five days and one year in prison
  • Operation of a motor vehicle required, and
  • Finding of impairment of blood alcohol content of at least .08.

The ICE FAQs also clarify that factors outside of the conviction itself can be considered on a case-by-case basis.  Others factors 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” and specifically for DUIs 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.”

Domestic Violence consequences

The ICE FAQ clarifies that domestic violence convictions are defined for enforcement purposes using the same statute that determines which domestic violence convictions cause deportability.  The FAQs say the state statute does not have to spell out the domestic relationship, but the conviction must be one that is considered a “crime of violence” under the Immigration and Nationality Act.

Noteworthy, substantial, or frequent violations of the visa system

Priority 2d refers to people who have “significantly abused the visa or visa waiver program,” but the term is not defined.  The new FAQs do not entirely define the term, either, saying significant abuse includes “intentional violations of the immigration laws that distinguish the [person] as a priority because of the noteworthy or substantial nature of the violations or their frequency.”  And the FAQs provide examples, saying

  • simple visa overstay does not equal significant abuse
  • immigration violations and adverse credibility findings do not equal significant abuse but may be considered, and
  • fraud is significant and should be considered

Danger to National Security

The very first Enforcement Priority, 1a, is for national security threats.  The FAQs clarify that this term is bound by two sections of the immigration law – section 212(a)(3) and section 237(a)(4).  They encompass:

  • (1) [those] who have engaged in espionage, sabotage, the illegal export of goods, technology, or sensitive information;
  • (2) [those] 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) human rights violators….