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Deconconstructing The Policy Of Targeting Criminal Aliens

On October 21, 2011, the Congressional Research Service released a report titled "Interior Immigration Enforcement: Targeting Criminal Aliens." I found the report interesting and instructive. I thought I would share with you the main highlights from the report.

Congress has always been interested in identifying and deporting serious criminal aliens. In fact, according to the Department of Justice (DOJ) and Bureau of Justice Statistics, of the 183,986 persons charged with federal offenses in 2009, 46% were not citizens of the United States and 15% had unknown citizenship status. Not surprisingly, the efforts focused on targeting criminal aliens have increased significantly since 2005. The Department of Homeland Security (DHS) oversees four (4) programs designed to address the criminal alien population. They include the Criminal Alien Program (CAP), Secure Communities, the § 287 program, and the National Fugitive Operations Program. It has been reported that the number of criminal noncitizens arrested through those 4 programs increased from 11,000 to over 289,000.

A few words regarding the program themselves. The Criminal Alien Program (CAP) works as a screening tool designed to identify, detain, and commence removal (deportation) proceedings against criminal noncitizens. This is usually done during the booking and among already incarcerated inmates. Secured Communities is an information sharing program between the DOJ and DHS. The information is obtained through biometric data obtained from aliens during their booking procedures. Agreements known as "§287(g) agreements," stemming from Section 287 of the Immigration and Nationality Act permit the DHS to delegate certain immigration enforcement responsibilities to state and local enforcement officers, like police officers.

The four program is the National Fugitive Operations Program (NFOP). It is primary function is the pursuit of criminal aliens at large (not in custody) as well as fugitive aliens. In addition to finding aliens who did not leave the United States following the final order of removal or failed to check with their removal officers, NFOP has been tasked with going after aliens with violent crimes, sexual abusers, and gang members.

The efforts by the DHS to apprehend criminal aliens have been generally well received. Across the board, CAP, Secured Communities, § 287 agreements, and NFOP have been responsible for increased numbers of arrest and identification of criminal aliens. However, there programs have not been without critics. Most of the concerns can be grouped into 4 areas. First, the programs have not narrowly focused on serious criminals as intended. Second, the programs have strained community-police relationship. Third, the programs have inadvertently resulted in racial profiling. Finally, many noncitizens who have not committed any crimes have been wrongfully detained in the process.

It is the primarily the last concern that has resulted in the DHS's creation of a system to prioritize which aliens should be removed from the United States. Starting the March 2011 Immigration and Custom Enforcement (ICE) Memo establishing "a three-tiered priority scheme" in the way aliens are apprehended and removed (focusing on aliens posing risk to national security or public safety, recent entrants to the United States, and fugitives), two other memoranda are noteworthy. In June 2011, ICE Director issued a memorandum meant to provide guidance to ICE officers, agents, and attorneys as which aliens should be considered for enforcement and instruct them to exercise "prosecutorial discretion" as they prioritize their cases.

Finally, on August 18, 2011, DHS Secretary Janet Napolitano declared both the March and June 2011 Memoranda to be the policy and guidelines for all DHS immigration agencies. The White House followed up by a statement issued the same day, clarifying that the DHS's enforcement priorities had President Obama's approval. It is reported that both DHS and DOJ are to commence a review of cases of individuals already in removal proceedings and a creation of further guidance of how to help those who have already been ordered removed.

Now why is this all important and why should we care? Because until the new prosecutorial discretion policies are worked out between the agencies, the noncitizens should remain vigilant and aware of the current DHS enforcement efforts and practices. While the DHS appears to be primarily interested in criminal aliens, others still continue to get caught in the process. Before any affirmative steps are taken for those who have lived in the United States undetected to come forward, noncitizens should seek legal advice first. Now more than ever the role of knowledgeable and competent immigration attorneys cannot be understated.

Our office can provide you with sound legal advice and expertise you will need to navigate through the difficult immigration laws. Please do not hesitate to contact us if you have any questions and concerns. We will be glad to help.

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