ICE Memo Outlines Enforcement Priorities as Obama Pushes Comprehensive Immigration Reform
Published: June 30, 2010

Recent estimates place the number of illegal or undocumented immigrants in the U.S. anywhere from 10 to 15 million. With very few exceptions, the laws these individuals are violating are civil in nature – similar to most traffic laws, or parking ordinances. Thus, contrary to the pronouncements of countless talking heads in the media, these violators are not “criminals” and necessarily subject to criminal punishment such as a prison sentence. Instead, immigration law violators are subject to the deportation process (now known as removal proceedings) where they will face a judge and an attorney from Department of Homeland Security’s Immigration and Custom Enforcement division (ICE) and the possibility being sent back to their home countries. A significant portion of this population however, may actually emerge from these proceedings in better shape than how they entered, with many eligible for relief such as “cancellation of removal” – and awarded a green card, if they have otherwise obeyed the law, resided in the U.S. for more than 10 years and have U.S. citizen or permanent resident spouses, parents or children who stand to suffer extreme hardships in the event of their deportation. Additionally, other forms of relief in defense of removal proceedings may be available to certain foreign nationals, depending on the facts of their case. Most of the undocumented population however, will likely have no choice but to ultimately pack up and leave.

Given that the vast, vast majority of the undocumented population have no criminal records whatsoever – and are otherwise hard working members of our society, and that the U.S. government has neither the resources nor the will to proceed with removal proceedings against so many millions of people, ICE has recently announced its priorities FOR immigration enforcement. And the release of this announcement just days ahead of President Obama’s July 1 speech to strongly urge our nation’s Congress to push ahead with immigration reform is no coincidence.

Starting with a bold admission that it only has resources to remove, or place in proceedings, up to 400,000 foreign nationals per year, the recent ICE memo proclaims that the following types of immigration law violators will be the focus of ICE efforts to enforce U.S. immigration laws (listed in order of priority):

1. “Aliens who pose a danger to national security or a risk to public safety” – such as individuals suspected of engaging in terrorism or espionage, violent criminals or repeat offenders and criminal gang members.

2. “Recent illegal entrants”, including those recently entering legally, but remaining in the U.S. in violation of their status. The language of the memo implies that immigration law violators who have been in the U.S. for longer periods of time, will not necessarily be a priority for ICE.

3. “Aliens who are fugitives or otherwise obstruct immigration controls”: includes various criminal offenders, individuals previously removed from the U.S. but who have reentered, individuals who are the subject of orders of removal but who never departed, and foreign nationals known to have committed some form of immigration fraud.

The recent ICE directive also indicated that absent extraordinary circumstances, the following classes of immigration law violators should not be subject to detention: those suffering from serious illness, the disabled, the elderly, pregnant women and mothers who are nursing or who are the primary caretakers of children or an infirm person.

Given the context of this recent ICE memo, it is clear that most, if not all, immigration law violators will not be returning to their home countries unless they are ordered to and put on a plane back home (and notwithstanding recent state legislative measures like Arizona’s). We as a nation are then left with one simple question to answer: should an initiative to subject all immigration law violators to removal proceedings be implemented, and if so, are we prepared to hire tens of thousands of government workers to staff such a plan? For certain, based on our government’s immigration law enforcement policies over the past 2 decades, this is not a direction we are headed. If that is the case, then the logical answer that follows would be a legislative agenda featuring comprehensive immigration reform and a path to citizenship for our nation’s otherwise law abiding undocumented – a population who are ready, willing and able to continue as contributing members of our society. President Obama knows this as do most logical Americans, but whether logic will prevail in this discussion is a separate question altogether.

Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois