Thursday, January 15, 2015

Here's the Proof

CBP Internal Employee FAQs on Executive Action

1.      What changes have the Secretary’s memorandum made to the DHS enforcement priorities?

Response:  The DHS priorities continue to focus on national security, public safety, and border security. The Secretary's memorandum provides guidance regarding which illegal aliens should be the focus of limited DHS enforcement resources. Under the Secretary’s guidance, DHS’s immigration enforcement
priorities are:

Priority 1 (threats to national security, border security, and public safety).  Aliens described in this priority represent the highest priority to which enforcement resources should be directed:

a.      aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
b.      aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States;
c.      aliens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. § 521(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;
d.      aliens convicted of an offense classified as a felony in the convicting jurisdiction, other than a State or local offense for which an essential element was the alien’s immigration status; and
e.       aliens convicted of an “aggravated felony,” as the term “aggravated felony” is defined in Section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.

The removal of these aliens must be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.

Priority 2 (misdemeanants and new immigration violators).  Aliens described in this priority, who are not also described in Priority 1, represent the second-highest priority. Resources should be dedicated accordingly to the removal of the following:

a.      aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or State or local offenses for which an essential element was the alien’s immigration status, provided the offenses arise out of three separate incidents;
b.      aliens convicted of a "significant misdemeanor," which for these purposes is an offense of domestic violence;[1]  sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above is one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);
c.      aliens apprehended anywhere in the United States after unlawfully entering or re-entering the U.S. and who cannot establish to the satisfaction of an immigration officer that they  have been physically present in the United States continuously since January 1, 2014; and
d.      aliens who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs.

These aliens should be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USICS Service Center Director, there are factors indicating the alien is not a threat to national security, border security, or public safety, and should not therefore be an enforcement priority.

Priority 3 (other immigration violators).  Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority.

2.      Will I receive training on the implementation of the President’s Executive Actions on Immigration?

Response:  Employees involved in making enforcement and prosecutorial discretion decisions will receive training in person or other methods prior to the implementation on January 5, 2015.

3.      What will this training cover?

Response:  The training will cover the DHS enforcement priorities, exercises of prosecutorial discretion, and the processing guidelines for aliens that claim DACA/DAPA relief.

4.      What if I encounter an individual who claims to be eligible for DACA or DAPA?

Response:  Aliens in CBP custody will receive initial processing in accordance with current practices. This includes biometric (14 YOA and older), biographic and apprehension data, including criminal and immigration history. Results will be documented in the appropriate processing systems and A-file along with a sworn statement and any evidence presented. Upon second level supervisory review and concurrence of prima facie eligibility for DACA or DAPA, the alien will be released from custody and referred to USCIS for a case-by-case determination. In the event the alien is an enforcement priority or fails to demonstrate prima facie eligibility for DACA or DAPA, the alien will be processed in accordance with current practices. Aliens who are not an enforcement priority will be released from custody with and alert entered into IDENT to inform any potential future encounters.


Ben Ferro

benferro@insideins.com