On January 25, 2017, President Donald Trump signed an executive order effectively changing immigration practices. The executive order has been spoken about extensively but the change in priority enforcements has been left out of that conversation. However, operating under these new priority enforcements, immigration officials picked up five noncitizens at the Lawrence, Massachusetts Immigration Office on March 31, 2017. This action by immigration officials shocked the community and immigration attorneys alike. The change in priority enforcements has forced immigration attorneys to change the advice they are giving to their clients.
What does priority enforcement mean?
Immigration Customs Enforcement (“ICE”) is a sub-agency of the U.S. Department of Homeland Security and responsible for detaining noncitizens. On November 20, 2014, President Obama endorsed a memorandum to the U.S. Department of Homeland Security which created what many refer to as the Priority Enforcement Policy (“PEP”). ICE follows the PEP to prioritize and determine who to detain. Under President Obama’s PEP, ICE agents focused on noncitizens that posed a threat to national security. Thus, ICE generally directed all its resources towards detaining noncitizens that committed major crimes and posed a danger to the United States. ICE agents did not target noncitizens that committed petty crimes, such as driving without a license. However, as a result of President Trump’s executive order, ICE agents have a broader mandate.
What has changed?
• ICE has more liberty to determine which noncitizens will be detained.
• The PEP has been expanded to focus on any noncitizen with a crime rather than those who have been convicted of certain crimes.
• Any noncitizen that has been charged with any crime is subject to be detained by ICE and put into removal proceedings.
• “Abuse” of the welfare system is considered reason for which a noncitizen could be detained.
What has not changed?
While many are shocked that ICE picked up and detained five noncitizens in front of an immigration building, the U.S. Citizens and Immigration Services (“USCIS”) has always reported to ICE any noncitizen that has an outstanding order of removal or any information that would make the noncitizen removable. ICE always had the ability to approach noncitizens at USCIS offices or in certain locations, but they have not done so for various reasons such as not wanting to generate media attention, the PEP, and recognizing that noncitizens appearing before a USCIS officer is attempting to adjust their status.
The threat of getting picked up by ICE and being detained has always been a fear of noncitizens and immigration attorneys alike. As President Obama’s PEP is no longer in place, the threat has simply become more real because the basis of the PEP has been expanded to include all noncitizens.
What does this mean?
As a result of the PEP broadening ICE’s scope of noncitizens to pursue, the number of noncitizens being detained will likely increase. An increase in the number of noncitizens being detained also means an increase in the number of bond proceedings on attorneys and students’ case load. Noncitizens that would otherwise be left alone under the Obama Administration’s PEP may find themselves in detention centers and facing deportation proceedings. While committing a petty crime does not make a noncitizen deportable, it does increase their likelihood to be detained. However, committing certain crimes can result in deportation. See 8 U.S.C. § 1227 (2012).
What advice can students give their clients?
• You do not have to talk to ICE. You have the right to calmly say “I do not wish to speak with you. Am I free to leave?
• Be mindful of your actions.
• Make sure to have your lawyers’ number on hand, just in case.
• If you are detained, it is your right to remain silent. You do not have to answer any questions.