New Guidelines Spell Out Who Can Be Held for Immigration Authorities
By TED HESSON
New federal guidelines spell out who should be held by local authorities for possible deportation, according to a memo released Friday by U.S. Customs and Immigration Enforcement (ICE).
The guidelines target enforcement on those with criminal convictions and repeat immigration offenders. “Relatively minor misdemeanors” should not result in a person being detained by local police for federal immigration authorities, the memo says.
The American Civil Liberties Union (ACLU) called the announcement “welcome news” but cautioned that the policy change won’t affect the broader way that detainers work.
“Most immigration detainers do not provide a lawful basis for arresting someone and holding them in jail for hours, days or weeks on end because they are issued without probable cause,” ACLU staff attorney Jennie Pasquarella said in a statement. “ICE’s reforms do nothing to address this most basic constitutional problem that has led to the needless, unlawful detention of both U.S. citizens and non-citizens alike, inspired racial profiling in policing, and crowded our jails on county dimes.”
Under the federal immigration enforcement program Secure Communities, local police are required to share arrestee fingerprints with the U.S. Department of Homeland Security (DHS). Those prints are run against an immigration database, after which federal authorities might place an immigration hold on an individual. That hold essentially asks local law enforcement to detain a person until the arrival of a federal agent.
Earlier this month, the California Attorney General Kamala Harris told law enforcement agencies in her state that they didn’t need to honor immigration holds issued through Secure Communities, saying that the program “has not held up to what it aspired to be.” Harris cited data showing that more than a quarter of those deported through Secure Communities in her state were non-criminals.
The new guidelines are not likely to end the debate about what crimes are serious enough to trigger an immigration hold. Southern California Public Radio reporter Leslie Bernstein Rojas points out that the memo contains ambiguous language and also counts immigration offenses among the crimes worthy of an immigration detainer.
“One clause states that detainers can be issued for individuals simply if agents ‘have reason to believe the individual is an alien subject to removal from the United States,’” Bernstein Rojas writes. “Convictions for illegal entry also count.”
Here are the new detainer guidelines from the memo (read the full version here):
National Detainer Guidance
Consistent with ICE’s civil enforcement priorities and absent extraordinary circumstances, ICE agents and officers should issue a detainer in the federal, state, local, or tribal criminal justice systems against an individual only where (1) they have reason to believe the individual is an alien subject to removal from the United States and (2) one or more of the following conditions apply:
- the individual has a prior felony conviction or has been charged with a felony offense;
- the individual has three or more prior misdemeanor convictions; (2)
- the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves
- violence, threats, or assault;
- sexual abuse or exploitation;
- driving under the influence of alcohol or a controlled substance;
- unlawful flight from the scene of an accident;
- unlawful possession or use of a firearm or other deadly weapon;
- the distribution or trafficking of a controlled substance; or
- other significant threat to public safety; (3)
- the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
- the individual has illegally re-entered the country after a previous removal or return;
- the individual has an outstanding order of removal;
- the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
- the individual otherwise poses a significant risk to national security, border security, or public safety. (4)
2. Given limited enforcement resources, three or more convictions for minor traffic misdemeanors or other relatively minor misdemeanors alone should not trigger a detainer unless the convictions reflect a clear and continuing danger to others or disregard for the law.
3. A significant threat to public safety is one which poses a significant risk of harm or injury to a person or property.
4. For example, the individual is a suspected terrorist, a known gang member, or the subject of an outstanding felony arrest warrant; or the detainer is issued in furtherance of an ongoing felony criminal or national security investigation.