U.S. Department of Homeland Security: Executive Actions on Immigration Enforcement

In November 2014, President Barack Obama announced a series of executive actions related to immigration policy.  Among the most important of the executive actions are new guidelines on immigration enforcement and the termination of the Secure Communities program. In this November 20, 2014 memo from Department of Homeland Security Secretary Jeh Johnson to the U.S. Immigration and Customs Enforcement Director, U.S. Customs and Border Protection Commissioner, and U.S. Citizenship and Immigration Services Director, new enforcement guidelines are announced.

The priorities for enforcement of deportation actions against individuals without legal immigration status are individuals who are threats to national security, border security, and public safety (defined as individuals with felony convictions and convictions for participation in street gangs) as a first priority; individuals convicted of three or more misdemeanors, “significant misdemeanors”, have not been physically present since January 1, 2014, or have significantly abused the visa or visa waiver program as a second priority; and individuals with final orders of removal as a third priority.  This means that “prosecutorial discretion” will be used to defer enforcement action agains all other individuals (in order words, those individuals physically present before January 2014 and do not have criminal convictions nor final orders of removal).  While this prosecutorial discretion does not grant legalization to these individuals, it does mean that enforcement actions will probably not be taken against them, including detention if apprehended by immigration authorities.  The guidance is effective January 5, 2015.

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Another memorandum from Secretary Johnson discontinues the Secure Communities program, which required local and state law enforcement officials to affirmatively report individuals suspected of being undocumented immigrants to the U.S. Immigration and Customs Enforcement.  Only individuals meeting the enforcement priorities outlined in the prior November 20, 2014 guidance are to transferred to immigration authorities for deportation.  The U.S. Immigration and Customs Enforcement also will only ask for notification of the release data of such individuals from local and state law enforcement officials rather than their detention.

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The Department of Justice also released a detailed legal opinion dated November 19, 2014 on the executive branch authority to exercise prosecutorial discretion and make these changes in the enforcement of U.S. immigration laws.

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