IMMIGRATION ISSUES: ICE Issues FAQs on Executive Actions

Contributed by Aaron Hall, Partner

Immigration and Customs Enforcement (ICE) has published Frequently Asked Questions relating to Executive Action on Immigration. The FAQs contain important guidance on the implementation of the executive actions announced on November 20, 2014. Some of the takeaways:

For those with BIA Appeals Denied After January 1, 2014

The 11/20/14 memorandum states that those who received final orders of removal on or after 1/1/14 will be an enforcement priority for ICE (Priority 3). However, the FAQs note that those who (1) were ordered removed by an immigration judge before 1/1/14; (2) timely appealed the immigration judge’s order; and (3) then received a denial of their appeal after 1/1/14 (making the official date that their removal order became final post-1/1/14) will not necessarily be considered enforcement priorities. Rather, these individuals “will be evaluated on a case-by-case basis to determine whether their removal would serve an important federal interest.”

For those with convictions for Colorado DWAI

Convictions for DUI trigger Priority 2 treatment by ICE. However, the FAQs state that to be considered a DUI for purposes of the 11/20/14 memo, the offense must require, as an element of the offense, either a finding of impairment or a blood alcohol content of .08 or higher. Because Colorado DWAI only requires a blood alcohol content of .05, it should not count as a DUI for purposes of the 11/20/14 memo and should not trigger Priority 2 treatment.

For those with convictions for identity theft-related crimes

While such crimes may trigger Priority 1 or 2 treatment depending on the offense, the FAQs indicate that ICE should be sensitive to overall circumstances of the arrest and conviction, including, “whether DHS was the agency that presented the case for prosecution, whether there is a victim in the case, the nature of any loss or harm experienced by the victim as a result of the crime, the sentence imposed as a result of the conviction (including whether the conviction was subsequently reclassified as a misdemeanor), whether there is any indication that the conviction has been collaterally challenged based on allegations of civil rights violations, and the nature and extent of the individual’s criminal history.”

For those with convictions with a Domestic Violence tag

The FAQs clarify that for purposes of the 11/20/14 memo, the definition of “domestic violence” includes only crimes are crimes of violence (as defined in section 16 of title 18). This means that convictions that have a domestic violence tag but are not crimes of violence should not be considered domestic violence crimes which trigger Priority 2 treatment under the 11/20/14 memo.

Significant abusers of the visa or visa waiver programs

Those found by the ICE Field Office Director, USCIS District Director, or USCIS Service Center Director to have “significantly abused the visa or visa waiver programs” trigger Priority 2 treatment by ICE under the 11/20/14 memo. The FAQs clarify that the overstay of a visa or the visa waiver program by itself does not constitute significant abuse and that the length of the overstay is not generally a factor to be considered. Rather, other relevant factors are prior and subsequent immigration violations and the commission of fraud when seeking an immigration benefit. The determination should be made considering the totality of the circumstances.