THIS IS IMMIGRATION ENFORCEMENT CRIMINAL ALIEN PROGRAM THIS IS IMMIGRATION ENFORCEMENT Priority Enforcement Program (formerly Secure Communities) ICE ERO Raids So a little bit of terminology as of now there are two ways the information form local law enforcment supports ICE’s work. First there are ICE holds or detainers. Recently they sort of solidified a process of information sharing into a simple form called a ICE notification, which is basically a form that alerts ICE to a person’s release and information. In theory this would be what they use to execute ICE raids in the community. Detainers are ICE detainers are the foundation of two major ICE programs (PEP and CAP) which allow ICE to take a person directly into ICE custody and remove them. I am going to talk more about PEP as it has a couple of facets. ICE detainers

How ICE detainers work ICE HOLD I will use the term detainer and hold interchangebley. PEP is the latest flavor of an information sharing/ICE enforcment program, but this program is basically just a new iteration of a longer standing and pretty hated program called Secure Communities or as the cool kids like to refer to it SCOMM. But if we are talking about PEP or SCOMM the basic process is the name. (read slide after) Creates an airtight pipeline to deportation ICE HOLD

The Truth about ICE Holds Not mandatory Not a warrant or anything like a warrant No standard for their issuance Not proof that client is deportable or is a even noncitizen May violate 4th amendment because no probable cause and no crime Although other Circuit and District Courts have found this to be true, there is no binding case law in the 5th Circuit Doesn’t serve a public safety function Costs county lots of money Subjects county to litigation

Executive Order on Internal Enforcement (1/27/17) New Priorities for ICE for holds Mandates Local Law Enforcement Cooperation with ICE Creates mechanism for withdrawal of federal funds Civil fines to undocumented and those who support them Publish weekly list of crimes committed by immigrants And More!

PEP (Prior Program) PRIORITIES BASED ON CONVICTION PRIORITY 1 • One felony conviction • One aggravated felony conviction (defined in immigration law) • Suspected of terrorism, espionage, national security risk • Gang member PRIORITY 2 • Significant misdemeanor convictions: •DWI (alcohol or drugs) •Domestic violence •Gun-related •Drug sale •Sexual abuse •Burglary (unlawful entry of a building + theft) •Any conviction with sentence of 90 days or more •Three or more misdemeanor convictions of any kind, except minor traffic offenses or juvenile offenses So if you have heard me cursing profusely in the past few weeks, it has to do with the title of this slide. While the PEP guidance DHS put out is VERY clear the holds are based on conviction (except for gangs and terrorits) this seems to not be the case. The ICE folks working Dallas county seem to struggle with the difference between a conviction and sentence and no amount of politely worded emailing seems to be clearing this up. Most recently I found out they added a 3rd type of hold form that was not really publicly released which is a big catch all, which I will discuss in a minute

The New Priorities for ICE All the grounds of inadmissibility and deportability; Have been convicted of any criminal offense; Have been charged with any criminal offense, where such charge has not been resolved; Have committed acts that constitute a chargeable criminal offense; Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; Have abused any program related to receipt of public benefits; Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or In the judgment of an immigration officer, otherwise pose a risk to public safety or national security. What does this section mean? The Trump Administration appears to be indicating that it will prioritize for removal 1) anyone who comes within the specified removal grounds OR 2) anyone otherwise removable AND who comes within the criteria in Sect. 5, (a)-(g) (has a conviction, has been charged with an offense, or has committed an offense, etc.). The Order does not specifically rescind any prior Department of Homeland Security (DHS) memoranda, but Section 10 of the Order terminates the Priority Enforcement Program (PEP). PEP was the program under Obama through which the DHS sought to obtain custody of those noncitizens deemed a priority for removal as described in Secretary Johnson’s November 20, 2014 memo.

How will the new priorities change practices on the ground? What it changes First, the broad language “committed acts that constitute a chargeable criminal offense” may be viewed as not requiring conviction Covers minor offenses such as speeding or driving without a license. Order will lead to greater profiling and pretextual arrests Likely that anyone who is undocumented (and entered without inspection) will be deemed a priority because committed the offense of illegal entry under 8 U.S.C § 1325. What it doesn’t change If your client has a valid status, it will not change anything although more likely to be looking closely Client will have the same relief in removal as before Advisals are more important than ever as the outcomes are more direct and immediate

Advising your client post 2/2017 Remind clients to bail out before client enters jail to avoid hold in future Advise client to refuse an interview with ICE officials in the jail If ICE interviews the client, advise the client to remain silent and only ask for his/her attorney If a hold is placed on your client, see if you can challenge the hold (less likely to work under new regime) Advise client about his/her right to refuse ICE entry into their home Advise client NEVER to sign anything without talking to a lawyer Discourage travel Back time is often better now as ICE coming to probation Detainer form says “should not alter bond analysis” Dallas County Public Defender