How do immigration authorities determine who to deport?

The Department of Homeland Security established a three-level priority enforcement system to deport immigrants who post threats to national security, public safety, and border security. According to this priority system, the Department of Homeland Security expends resources to first detain and remove (or deporting) immigrants that fall within the levels of priority.

First Priority – Threats to National Security, Border Security, and Public Safety

The highest priority for detention and deportation is directed at the following immigrants:

  1. immigrants who engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
  2. immigrants detained at the border or ports of entry while attempting to unlawfully enter the United States;
  3. immigrants convicted of an offense for which an element was active participation in a criminal street gang, or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang;
  4. immigrants convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien’s immigration status; and
  5. immigrants convicted of an “aggravated felony,” as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction.

Immigrants in the first priority will be deported unless they qualify for asylum or another form of relief under immigration law, or unless there are compelling and exceptional evidence that the immigrant is not a threat to national security, border security, or public safety.

Second Priority – Misdemeanants and New Immigration Violators

The second-highest priority for detention and deportation is given to the following immigrants:

  1. aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element was the alien’s immigration status, provided the offenses arise out of three separate incidents;
  2. aliens convicted of a “significant misdemeanor,” which for these purposes is an offense of domestic violence ; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence);
  3. aliens apprehended anywhere in the United States after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014 ; and
  4. aliens who have significantly abused the visa or visa waiver programs.

Immigrants in the second priority may be deported unless they qualify for asylum or another form of relief under immigration law, or unless there is evidence that they are not a threat to national security, border security, or public safety.

Third Priority – Final Order of Removal

The lowest priority for detention and deportation is given to immigrants with a final order of removal issued on or after January 1, 2014. Aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Resources should be dedicated accordingly to aliens in this priority.

Immigrants in the third priority may generally be deported unless they qualify for asylum or another form of relief under immigration law, or unless the alien is not a threat to the integrity of the immigration system.

Who determines the mitigating circumstances against deportation?

Even if an immigrant falls within one of the three priorities for depositions, the Department of Homeland Security has authority to choose who to detain and deport or to stop the deportation process based on the individual circumstances in each case. This authority is called “prosecutorial discretion.” The DHS may consider the following factors in exercising their prosecutorial discretion:

  • extenuating circumstances involving the offense of conviction;
  • extended length of time since the offense of conviction;
  • length of time in the United States; military service;
  • family or community ties in the United States;
  • status as a victim, witness or plaintiff in civil or criminal proceedings; or
  • compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.

How do immigration authorities learn of an arrest or criminal activity of an immigrant?

When an individual is arrested and booked by a law enforcement officer, his or her fingerprints are submitted to the FBI for criminal history and warrant checks. This information is also sent to U.S. Immigration and Customs Enforcement (ICE) so that ICE can determine whether the individual is a priority for removal.

If the individual has been convicted of an offense that falls within the deportation priority schedule, has intentionally participated in criminal gang activity, or poses a danger to public safety, ICE can either request notification (at least 48 hours, if possible) of when the individual is to be released, request an immigration detention of the individual beyond that point, but not to exceed 48 hours (Saturdays, Sundays, and holidays are not excluded) so that they can assume custody of the individual, or request a transfer of the individual to an immigration detention facility.

In many cases, ICE will simply request notification of when an individual who falls within the deportation priorities is to be released. The immigration detainer may only be issued in limited circumstances, when the individual is both a deportation priority and when there is probable cause to believe that the individual is removable.

What is a probable cause that an individual is deportable?

The probable cause can exist when:

  • the individual has a final order of removal;
  • the individual has pending deportation (removal) proceedings;
  • the biometric match reflects no lawful status or that the individual is otherwise removable; or
  • statements by the subject to an immigration officer and/or other reliable evidence.

How can we help?

If you are currently facing criminal charges or has other criminal history, we can review the individual circumstances of your case, guide you through the immigration law that may affect your status, and provide deportation defense. Call us now for a consultation. (386) 248-3000.