As part of the executive actions reforms announced by the administration yesterday, the administration has redefined the enforcement priorities for Immigration & Customs Enforcement. Briefly, any law enforcement agency with limited resources can not realistically enforce the law against everyone who may have broken it. Law enforcement agencies must pick and choose how to allocate their limited resources and where to expend their efforts. The new enforcement priorities memo provides very clear guidance to ICE as to who their efforts ought to be focused upon. Groups of people have been classified into three priorities for enforcement, in declining orders of priority. Individuals not within this memo are, presumably, not priorities, and should be eligible for benefits and not subjected to enforcement actions like detention and removal. The three classes of priority are as follows:
Priority 1 (Most serious)
- individuals suspected of terrorism, espionage or who are otherwise a threat to national security
- individuals apprehended at the border while trying to enter the country illegally
- individuals involved in gangs or gang activity
- individuals convicted of a felony unless the essential element of the offense is the individual’s immigration status
- individuals convicted of an aggravated felony
Priority 2 (Medium serious)
- individuals convicted of three or more misdemeanors, not including traffic offenses or offenses where an essential element is the individual’s immigration status
- individuals convicted of a “significant misdemeanor”, which is defined as: an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug trafficking or distribution, driving under the influence, or any offense not included above for which the individual was sentenced to 90 days or more in custody (unlike in most immigration situations, a suspended sentence does not count)
- those who have entered the U.S. unlawfully after January 1, 2014
- significant visa or visa waiver abusers
Priority 3 (Less serious)
- Individuals with a final order of removal entered after January 1, 2014, unless there are other factors that suggest that the individual should not be a priority for enforcement.
Once again, presumably, an individual not on any of these lists should not be considered a priority for removal and ICE is directed not to expend resources of seeking their detention and removal. We will be watching ICE to see how the agents in the field respond to these revised priorities.