New Guidance on Immigration Detention and Detainers
On December 24, 2012, ICE released statistics regarding the number of removals it effected in FY2012 as well as new guidance regarding detention priorities. Removal numbers remain high. The Office of Enforcement and Removal Operations reports that 409,849 individuals were removed from the United States during FY2012. This is a slight increase from the 396,906 removed in FY2011 and the 392,000 removed in FY2010. As in previous years, approximately 55 percent of those removed in FY2012 were convicted of a crime, including 1,215 convicted murderers, 5,557 convicted sex offenders, 40,448 individuals convicted of drug offenses, and 36,166 individuals convicted of driving while intoxicated. ICE states that approximately 96 percent of all removals were individuals who fell into one of the priority categories.
ICE has defined three enforcement priorities: (1) foreign nationals who pose a danger to national security or public safety including those convicted of crimes, gang members, and those with outstanding warrants; (2) recent illegal entrants; and (3) fugitives or those who otherwise obstruct immigration controls. It is important to note that the first priority includes anyone “convicted of crimes” even if these crimes are minor violations. It is not difficult to fall into one of these “priority” categories and so it is vitally important that foreign nationals not commit crimes in the United States. However, this priority system and the recent numbers published by ICE are promising. They show that the priority system is working and that fewer foreign nationals without criminal convictions or other serious immigration violations are being deported (approximately 4 percent or 16,394 people). The numbers, however, are still too high.
To further buttress this good news, ICE Director John Morton issued a new policy memorandum on December 21, 2012, regarding ICE's detention policy. According to this new memorandum, ICE should only detain individuals who ICE believes are deportable under the U.S. immigration laws and where one or more other special circumstances exist. Those circumstances include: (1) prior felony convictions; (2) three or more prior misdemeanor convictions; (3) misdemeanor convictions for violent crimes, sexual abuse or exploitation, driving under the influence, unlawful flight from the scene of an accident, possession of a deadly weapon, dealing in controlled substances, or other significant threats to public safety; (4) conviction for illegal entry; (5) illegal re-entry after a previous removal or deportation; (6) having an outstanding order of removal or deportation; (7) knowingly committing immigration fraud; or (8) otherwise posing a significant risk to national security, border security, or public safety.
To oversee this new priority system, Director Morton also announced that ICE will issue a new detainer form that will require ICE agents seeking to detain an individual to identify the reason for the detention, which must be one of the reasons stated above. The stated goal being that both the detainee and ICE will know the reason for the person's detention. It is unclear what this new system will do in the real world, but it demonstrates that ICE as an agency is seeking to create some measure of accountability and openness when it comes to detention decisions.
If you or someone you love is detained by ICE, that detention may not be necessary. Currently ICE often detains individuals who do not fit into one of the priorities above. Oftentimes individuals qualify for bond even if ICE initially refuses. Many individuals also qualify for relief, including permanent residency, but do not know what to apply for.
Please see the following pages for more information about:
Immigration bonds;
Removal proceedings; and
Relief from removal
