The New World of Immigration

With deepest gratitude to David Patton and Isaac Wheeler of the Federal Defenders of New York, borrowed from the Reasonable Doubt blog.

Note: This memorandum is in response to the Executive Order filed Jan. 25, and not the most recent EO banning refugees and Muslims.

President Trump’s executive order titled “Enhancing Public Safety in the Interior of the United States,” signed on Jan. 25, may have significant impacts on non-citizens with open federal criminal cases in the relatively near term. The order is only two days old and does not explicitly withdraw existing agency guidance on most issues it addresses, so it is not clear how soon DHS or DOJ will issue revised guidance to field offices regarding implementation. But federal criminal practitioners should be aware of several aspects of this order that may alter the landscape for noncitizen defendants and should closely monitor their implementation:

1) Some federal defendants who would not have been ICE enforcement priorities before may now be high priorities for removal even pre-conviction. Obama’s DHS Secretary Jeh Johnson issued a 3-tiered system of ICE enforcement priorities in late 2014. Once those took effect in 2015, 98 to 99% of all non-border removals were people who fell under those priorities, with the vast majority falling under levels 1 and 2 (primarily immigrants with convictions). As a result, thousands of ‘just undocumented’ folks or people with only minor records were left alone, even if ICE encountered them in the criminal justice system. The new order does not explicitly withdraw the 2014 memo but includes overarching language suggesting that no-one encountered by ICE need be left alone. (Before, ICE had to determine that a non-priority immigrant’s deportation served an “important federal interest” to deport him or her, and this accounted for only 0.2% of removals in FY2016).

It is important to bear in mind that ICE cannot generally deport people who are currently in valid immigration status (such as green card holders) in the absence of a conviction that falls under one of the specified categories of deportable conduct in the Immigration and Nationality Act. (There are exceptions, including for noncitizens apprehend at ports-of-entry, such as airport courier cases). This order does not change that. But as to those who currently lack valid immigration status or who have status but also already have a conviction that renders them deportable, it defines new and vastly broader enforcement priorities, including:

· Anyone who has been convicted of any “criminal offense” (even one that does not fall under a criminal deportation ground of the INA, such as a traffic misdemeanor). This language appears to apply to past convictions with no statute of limitations, and it is not clear yet whether it applies to dispositions that a state or locality would define as non-criminal (such as N.Y. state violations).

· Anyone who has been charged with any criminal offense, “where such charge has not been resolved.”

· Anyone who has committed conduct that constitutes a chargeable criminal offense (again, possibly including the most minor offense). This also conceivably covers anyone who entered the country illegally, since that is an offense under 8 USC 1325.

· Anyone who has engaged in fraud or willful misrepresentation in connection with an official matter or application to a government agency, or who has “abused” public benefits

· Anyone whom an immigration officer judges to be a risk to public safetyAgain, these expanded priorities apply to people who are “removable,” and not, for example, to a green card holder arrested in the interior who has no prior convictions but has a pending case. Such a person is usually only removable upon conviction.

For clients covered by these expanded priorities, defenders should note that several of the changes may alter ICE and CBP practices when a non-citizen federal defendant is released on bond. In many cases, even if a defendant has an immigration detainer, ICE or CBP will process them upon release from custody but then allow the defendant to stay out under the bond conditions set by the court while the criminal case plays out. It remains to be seen if DHS will interpret the Jan. 25 order as a directive to work at cross-purposes with the U.S. Attorney’s Office by removing clients who are still facing federal prosecution. But for now, when there is a detainer, defense counsel should consult an immigration expert before seeking a client’s release on bond and should consider whether the client would be helped or harmed by being taken into ICE or CBP custody for removal before a criminal case is resolved. And depending on how this provision is interpreted by DHS, clients under pre-trial supervision who currently lack immigration status or who are otherwise removable may wish to consult an immigration expert now about possible defenses to removal, in light of the risk of possible immigration detention. (Clients should only be referred to reputable immigration lawyers with expertise in criminal-immigration removal defense).

Defense counsel should also consider these revised enforcement priorities when counseling a client regarding the effect of a deferred prosecution or the dismissal of a case (especially, but not exclusively, cases regarding document fraud, other frauds on the government, or public benefits), since DHS may interpret the order as a directive to prioritize even clients who are cleared of charges.

2) DOJ and DHS are ordered to identify and report on every federal defendant’s immigration status. Under the rubric of ‘transparency,’ the order directs DHS and DOJ to “collect relevant data” for quarterly reports on all non-citizens in BOP custody and “all aliens incarcerated as federal pre-trial detainees under the supervision of the [Marshals].” That’s not likely to change anything tomorrow, and virtually every deportable non-citizen in BOP custody becomes known to ICE already, but it could mean a closer-to-100% detainer rate at presentments if the Marshals implement this policy even when arresting case agents don’t confer with DHS.

3) Relatedly, the Priority Enforcement Program (“PEP”) Is scrapped and the Secure Communities (“S-Comm”) program is coming back. The Secure Communities program allowed ICE to learn of the arrest of noncitizens by any law enforcement agency via instant sharing of booking fingerprint data and to lodge “detainers” temporarily preventing their release. It was replaced with PEP in 2015 because of widespread criticism of the former program and the refusal of many jurisdictions to comply due to concerns about the legality and constitutionality of immigration detainers issued under S-Comm. Under PEP, ICE continued to receive fingerprint data but supposedly narrowed its criteria for the issuance of detainers. Importantly, in some cases it began to lodge a revised detainer form (I-247N) that only asked criminal authorities to notify ICE of a defendant’s release, not to hold the individual for 48 hours beyond the termination of criminal custody. While immigration advocates dispute claims that PEP meaningfully addressed the problems with the old, legally and constitutionally suspect detainers, S-Comm will now be reinstated, reversing whatever gains PEP represented. For now, if the USAO or USMS claims there is a detainer on a client, defense counsel should demand to see it and should note whether it is an I-247N that does not actually request that the defendant be held for ICE. In addition, detainers issued under PEP explicitly state that they are not meant to affect decisions on the issuance of bond, so subject to the new concerns discussed in Point 1, above, defense counsel should not automatically assume in every case that the existence of a detainer makes release on bond impossible or inadvisable.

4) Other aspects of the order may have significant impacts on noncitizens in the federal criminal justice system in the longer term:

· DOJ is ordered to devote “adequate resources” to the prosecution of immigration-related crimes. Since these already account for 52% of all federal criminal prosecutions, the impact of this directive is unclear, but the President appears to consider this allocation “inadequate”;

· DHS and DOS are ordered to implement authorized sanctions against countries that resist accepting deportees, which could change the outlook for defendants from Cuba, China, Sierra Leone, Vietnam, and other so-called “recalcitrant” countries;

· The broad language in the order directing the enforcement of the law against “all removable aliens” might affect DHS’ use of prosecutorial discretion to benefit federal defendants including cooperators, although again it remains to be seen if DHS will interpret the order as an instruction to work at cross-purposes with other state and federal law enforcement agencies

· Subject to appropriation, the order directs the hiring of 10,000 additional interior enforcement agents (above the large increases in the Border Patrol in the separate border enforcement order). ICE agents might be deemed exempt from the hiring freeze the President has separately ordered as necessary to meet public safety responsibilities, but if immigration judges are not, the already critical overcrowding of immigration courts could become a severe due process problem. (At this writing, detained noncitizens in New York are waiting eight to ten weeks for an initial hearing with an immigration judge).

Several immigration advocacy have already issued preliminary advisories and commentaries on the executive orders (which have helped inform the analysis above). Defense counsel should continue to check back with these organizations (including the National Immigration Project of the National lawyers Guild and the American Immigration Council) and the National Immigrant Justice Center’s Defender Initiative page for continuing guidance.

The impacts of this order on state criminal justice systems may be far more sweeping, and state criminal defense practitioners should watch for an advisory soon from the Immigrant Defense Project.

Isaac Wheeler

Immigration Attorney

Federal Defenders of New York

52 Duane St. 10th Fl.

New York, NY 10007