ICE's Priority Enforcement Program

1️⃣ Priority 1: High Priority Removals

Individuals classified under Priority 1 were considered the highest priority for removal. This category encompassed:

• 1(a): Non-citizens deemed a national security threat.
• 1(b): Those apprehended immediately at the border.
• 1(c): Known gang members.
• 1(d): Individuals convicted of any offense classified as a felony in their jurisdiction (excluding those solely related to immigration status).
• 1(e): Individuals convicted of offenses defined as aggravated felonies under immigration law.

2️⃣ Priority 2: Subject to Removal

This category included individuals who, while not necessarily national security threats, were still subject to removal based on specific criteria:

• 2(a): Those convicted of three or more misdemeanors.
• 2(b): Individuals convicted of a "serious misdemeanor," defined by offenses such as domestic violence, burglary, unlawful firearm possession, drug distribution, or driving under the influence, where a custodial sentence of 90 days or more was imposed.
• 2(c): Individuals who entered the U.S. unlawfully after July 1, 2014.
• 2(d): Those who had demonstrably abused visa or Visa Waiver Programs.

3️⃣ Priority 3: Final Removal Orders

This priority group consisted of non-citizens who had received a final order of removal on or after January 1, 2014.

An important provision allowed for exceptions to removal for individuals within these priority categories if an ICE Field Office Director, CBP Sector Chief, or Director of Field Operations determined, based on compelling and exceptional factors, that the individual posed no threat to national security, border security, or public safety.

📜 Evolution from S-COMM

The predecessor program, Secure Communities (S-COMM), heavily relied on ICE Form I-247 detainers. These requested local law enforcement agencies (LEAs) to hold individuals for up to 48 hours beyond their scheduled release, allowing ICE to take custody. This practice faced significant criticism and legal challenges, including allegations of Fourth Amendment violations and imposing unconstitutional burdens on LEAs.

🔄 PEP's New Detainer Forms

PEP introduced three new forms to replace the I-247 detainer, aiming to address constitutional concerns and reduce the burden on local agencies:

• Form I-247N (Request for Voluntary Notification of Release): This form requested LEAs to notify ICE of an individual's pending release at least 48 hours in advance, but did not authorize holding the individual beyond their scheduled release. It required ICE to specify the enforcement priority.
• Form I-247D (Immigration Detainer - Request for Voluntary Action): This form requested LEAs to maintain custody for up to 48 hours beyond the scheduled release. It mandated ICE to state the enforcement priority and the basis for probable cause, and required the LEA to serve a copy on the individual.
• Form I-247X (Request for Voluntary Transfer): Used for priorities outside PEP's scope (1b, 2c, 2d, 3), this form also requested voluntary custody for up to 48 hours.

Key changes included a stricter 48-hour limit (including weekends/holidays), the requirement for LEAs to provide a copy of the detainer to the individual, and the necessity for ICE to state probable cause and identify the relevant priority category.

📉 Dissatisfaction with Secure Communities

The Secure Communities (S-COMM) program, initiated in 2008 and expanded under the Obama administration, faced significant criticism. Concerns included its broad scope, which led to the apprehension of individuals with minor offenses or no offenses at all, the constitutionality of detainers (as highlighted in cases like Miranda-Olivares v. Clackamas County and Galarza v. Szalczyk), the financial burden on local law enforcement without reimbursement, and the erosion of trust between communities and police.

📜 Policy Shifts and Memos

Prior to PEP, ICE Director John T. Morton's 2011 memos emphasized prosecutorial discretion and established enforcement priorities, guiding agents to focus on higher-priority cases. President Obama's Deferred Action for Childhood Arrivals (DACA) initiative in 2012 further signaled a shift in enforcement strategy. The November 20, 2014, memos by DHS Secretary Jeh Johnson formally announced the discontinuation of S-COMM and the introduction of PEP, alongside updated enforcement priorities, aiming to address criticisms while maintaining enforcement capabilities.

🏛️ Legislative and Local Responses

In January 2015, the U.S. House of Representatives attempted to counter the administration's policy changes by passing legislation to revoke the November 2014 executive actions and reinstate Secure Communities. However, this effort was blocked in the Senate. Locally, responses varied; some jurisdictions, like San Francisco, continued to restrict cooperation with ICE, while others, like Los Angeles County, engaged in discussions and eventually participated in PEP under revised terms.

👍 Law Enforcement Perspective

Some law enforcement officials, particularly in the wake of high-profile incidents, viewed PEP as a constructive framework for cooperation between federal immigration authorities and local police. They argued it offered a more targeted approach than S-COMM, potentially mitigating some of the community trust issues while still facilitating enforcement actions against priority individuals.

👎 Civil Rights and Advocacy Groups

Civil rights organizations, such as the ACLU, National Immigration Law Center (NILC), and the National Day Laborer Organizing Network (NDLON), expressed skepticism. While acknowledging PEP as a potential improvement over S-COMM, they criticized the continued vagueness of "probable cause" definitions and the potential for family separations. Concerns were raised that the program's changes were largely cosmetic and did not fundamentally address the constitutional and community impact issues inherited from S-COMM.

🧐 Immigration Restrictionist Groups

Groups advocating for stricter immigration controls, such as the Center for Immigration Studies (CIS) and NumbersUSA, criticized PEP as a regression from S-COMM. They contended that PEP would lead to the release of more individuals with criminal records back into communities, citing perceived decreases in ICE arrests and removals as evidence of weakened enforcement. Reports from congressional committees also echoed these concerns, suggesting PEP endangered communities compared to its predecessor.

📜 References