Amnesty
Law was passed by the Congress during President Reagan’s time in 1986. Under
the Immigration Reform Act 1986, persons who entered the U.S. on or before
January 1, 1982 or performed agricultural work for 90 days during May 1985 to
1986 were granted amnesty and legalized their status as a permanent resident.
Since
1986, there have been several bills passed by the Congress, under which
amendments were made to make changes in the law to grant some benefits and also
enforcement to deter entry of illegal aliens apprehension and deportation of
persons in unlawful status. However, no amnesty bill has been passed by the
Congress until this date.
Most
of the Presidents, including Bill Clinton, George Bush, and presently, Barack
Obama, have supported the legislation to provide legal status to undocumented
aliens. However, due to strong oppositions from the Congressional Republicans,
no such bill has been passed by the Congress and more than 11 million
undocumented aliens are presently in the U.S., many of them do not have social
security numbers and driving license, their children cannot pursue studies in
colleges, and aliens apprehended even for small violations are deported from
the U.S. Attempts were made to get the Dream Act passed by the Congress to give
legal status to undocumented students who entered the U.S. under the age of 16
years, so that they can come out of the shadow and live, study, or work in the
U.S. without any fear. All efforts to get the Dream Act passed by the Congress
have failed.
President
Barack Obama made a campaign promise to get some sort of earned legalization
bill and legislation, such as the Dream Act, passed by the Congress, but has
failed in accomplishing this objective.
Having
been frustrated by the failure on the part of the Congress to get any
meaningful legislation passed by the Congress, Obama Administration has made
several efforts to make changes in the manner of how existing laws are
implemented, which will provide some relief to undocumented aliens. The
Administration has issued several memos to concerned officials of U.S.
Citizenship & Immigration Services (USCIS), U.S. Immigration and Customs
Enforcement (ICE), U.S. Customs and Border Protection (CBP), Government
lawyers, and Immigration Judges, to follow the policy laid down by the
Administration in providing reliefs as well as enforcement of the existing law.
In
this series of articles, we will provide the text of these memos mentioned
herewith, so that our readers can benefit from the Administrative Guidelines:
1.
Memo
of March 2, 2011 issued by John Morton, Director of ICE, to all concerned
officials with regards to Civil Immigration Enforcement: Priorities for the Apprehension,
Detention, and Removal of Aliens.
Purpose
This memorandum outlines the
civil immigration enforcement priorities of U.S. Immigration and Customs
Enforcement (ICE) as they relate to the apprehension, detention, and removal of
aliens. These priorities shall apply across all ICE programs and shall inform
enforcement activity, detention decisions, budget requests and execution, and
strategic planning.
A. Priorities for the apprehension, detention, and removal
of aliens.
In addition to our important
criminal investigative responsibilities, ICE is charged with enforcing the
nation's civil immigration laws. This is a critical mission and one with direct
significance for our national security, public safety, and the integrity of our
border and immigration controls. ICE, however, only has resources to remove
approximately 400,000 aliens per year, less than 4 percent of the estimated
illegal alien population in the United
States . In light of the large number of
administrative violations the agency is charged with addressing and the limited
enforcement resources the agency has available, ICE must prioritize the use of
its enforcement personnel, detention space, and removal resources to ensure
that the removals the agency does conduct promote the agency's highest
enforcement priorities, namely national security, public safety, and border
security.
To that end, the following shall
constitute ICE's civil enforcement priorities, with the first being the highest
priority and the second and third constituting equal, but lower, priorities.
Priority 1. Aliens who pose a danger
to national security or a risk to public safety
The removal of aliens who pose a
danger to national security or a risk to public safety shall be ICE's highest
immigration enforcement priority. These aliens include, but are not limited to:
·
aliens engaged in or
suspected of terrorism or espionage, or who otherwise pose a danger to national
security;
·
aliens convicted of crimes, with a particular
emphasis on violent criminals, felons, and repeat offenders;
·
aliens not younger than 16 years of age who
participated in organized criminal gangs;
·
aliens subject to outstanding criminal warrants;
and
·
aliens who otherwise pose a serious risk to
public safety.
For purposes of prioritizing the
removal of aliens convicted of crimes, ICE personnel should refer to the
following new offense levels defined by the Secure Communities Program, with
Level l and Level 2 offenders receiving principal attention. These new Secure
Communities levels are given in rank order and shall replace the existing
Secure Communities levels of offenses.
·
Level 1 offenders: aliens convicted of
"aggravated felonies," as defined in Section 101(a)(43) of the
Immigration and Nationality Act, or two or more crimes each punishable by more
than one year, commonly referred to as "felonies";
·
Level 2 offenders: aliens convicted of any
felony or three or more crimes each punishable by less than one year, commonly
referred to as "misdemeanors"; and
·
Level 3 offenders: aliens convicted of crimes
punishable by less than one year.
Priority 2. Recent illegal entrants
In order to maintain control at
the border and at ports of entry, and to avoid a return to the prior practice
commonly and historically referred to as "catch and release," the removal
of aliens who have recently violated immigration controls at the border, at
ports of entry, or through the knowing abuse of the visa and visa waiver
programs shall be a priority.
Priority 3. Aliens who are fugitives
or otherwise obstruct immigration controls
In order to ensure the integrity
of the removal and immigration adjudication processes, the removal of aliens
who are subject to a final order of removal and abscond, fail to depart, or
intentionally obstruct immigration controls, shall be a priority. These aliens
include:
·
fugitive aliens, in descending priority as
follows:
o
fugitive aliens who pose a danger to national security;
o
fugitives aliens convicted of violent crimes or who otherwise pose a
threat to the
community;
o
fugitive aliens with criminal
convictions other than a violent crime;
o
fugitive aliens who have not been convicted of a crime;
·
aliens who reenter the country illegally after
removal, in descending priority as follows:
o
previously removed aliens who pose a danger to national security;
o
previously removed aliens convicted of violent crimes or who otherwise
pose
a threat to the community;
o
previously removed aliens with criminal convictions other than a violent
crime;
o
previously removed aliens who have not been convicted of a crime; and
·
aliens who obtain admission or status by visa,
identification, or immigration benefit fraud.
The
guidance to the National Fugitive Operations Program: Priorities, Goals and
Expectations, issued on December 8, 2009, remains in effect and shall continue
to apply for all purposes, including how Fugitive Operation Teams allocate
resources among fugitive aliens, previously removed aliens, and criminal
aliens.
B. Apprehension, detention, and removal of other aliens
unlawfully in the United
States
Nothing in this memorandum should
be construed to prohibit or discourage the apprehension, detention, or removal
of other aliens unlawfully in the United States . ICE special agents,
officers, and attorneys may pursue the removal of any alien unlawfully in the United States ,
although attention to these aliens should not displace or disrupt the resources
needed to remove aliens who are a higher priority. Resources should be
committed primarily to advancing the priorities set forth above in order to
best protect national security and public safety and to secure the border.
C. Detention
As a
general rule, ICE detention resources should be used to support the enforcement
priorities noted above or for aliens subject to mandatory detention by law. Absent
extraordinary circumstances or the requirements of mandatory detention, field
office directors should not expend detention resources on aliens who are known
to be suffering from serious physical or mental illness, or who are disabled,
elderly, pregnant, or nursing, or demonstrate that they are primary caretakers
of children or an infirm person, or whose detention is otherwise not in the
public interest. To detain aliens in those categories who are not subject to
mandatory detention, ICE officers or special agents must obtain approval from
the field office director. If an alien falls within the above categories and is subject to mandatory
detention, field office directors are encouraged to contact their local Office
of Chief Counsel for guidance.
D. Prosecutorial discretion
The rapidly increasing number of criminal aliens who may
come to ICE's attention heightens the need for ICE employees to exercise sound
judgment and discretion consistent with these priorities when conducting
enforcement operations, making detention decisions, making decisions about
release on supervision pursuant to the Alternatives to Detention Program, and
litigating cases. Particular care should be given when dealing with lawful
permanent residents, juveniles, and the immediate family members of U.S. citizens.
Additional guidance on prosecutorial discretion is forthcoming. In the
meantime, ICE officers and attorneys should continue to be guided by the
November 17, 2000 prosecutorial discretion memorandum from then-INS
Commissioner Doris Meissner; the October 24, 2005 Memorandum from Principal
Legal Advisor William Howard; and the November 7, 2007 Memorandum from then
Assistant Secretary Julie Myers.
To Be Continued…
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