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ICE announces 'immigration hold' guidelines while hitting new deportation record

An Immigration and Customs Enforcement (ICE), officer prepares an undocumented Salvadorian immigrant for a deportation flight bound for San Salvador.
An Immigration and Customs Enforcement (ICE), officer prepares an undocumented Salvadorian immigrant for a deportation flight bound for San Salvador.
John Moore/Getty Images

U.S. Immigration and Customs Enforcement is responding to state and local leaders' recent efforts to cut down on the number of immigrants held for deportation by issuing its own set of guidelines for what are known as "immigration detainers," released Friday.

But despite reports of a recent dropoff in deporation cases at the court level, the Obama adminstation has continued to deport record numbers of people, at least through fiscal year 2012. During that time, immigration authorities removed more than 409,000 people.

State or local law enforcement places immigration detainers, or holds, on individuals if that person is deemed deportable. The holds are standard practice in the enforcement of Secure Communities, a federal program that allows peace officers to share the fingerprints of people booked at local facilities with Homeland Security. If there is a match, the local agency is asked to hold the person for deportation by immigration officials.

The new ICE guidelines, outlined in a memo by agency director John Morton, call for limiting who is held and to note various qualifying offenses. But there are still broad categories of people who can be held for no other violation. One clause states that detainers can be issued for individuals simply if agents "have reason to believe the individual is an alien subject to removal from the United States." Convictions for illegal entry also count.

From the memo, detailed guidelines for "National Detainer Guidance:"

Consistent with ICE's civil enforcement priorities and absent extraordinary circumstances, ICE agents and officers should issue a detainer in the federal, state, local, or tribal criminal justice systems against an individual only where (1) they have reason to believe the individual is an alien subject to removal from the United States and (2) one or more of the following conditions apply:

• the individual has a prior felony conviction or has been charged with a felony offense;

• the individual has three or more prior misdemeanor convictions;2

• the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves -

- violence, threats, or assault;

-  sexual abuse or exploitation;

- driving under the influence of alcohol or a controlled substance;

- unlawful flight from the scene of an accident;

- unlawful possession or use of a firearm or other deadly weapon;

- the distribution or trafficking of a controlled substance; or

- other significant threat to public safety;

• the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;

•the individual has illegally re-entered the country after a previous removal or return;

• the individual has an outstanding order of removal;

• the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or

• the individual otherwise poses a significant risk to national security, border security, or public safety.

The ICE memo notes that the Homeland Security detainer form, I-247, will be revised to reflect the guidelines.

One frequent criticism of Secure Communities has been that too many people with either minor or no offense records are held for deporation, whereas the stated focus of the Obama administration has been to net serious criminals. 

The program, combined with other policies, has boosted deportations to record levels in recent years, and fiscal 2012 is no different:  ICE on Friday said that it removed 409,849 individuals between Oct. 1, 2011 and last Sept. 30; 55 percent were categorized as convicted criminals, although this includes misdemeanors. See a breakdown of removals here

Since Secure Communities rolled out in late 2008, opponents have pointed out problems including  confusion over whether the program was optional. As officials in various states began voicing concerns that it might alienate immigrant communities and potentially impede policing, some states attempted to bow out of the program, only to be told by ICE that they could not. In August of last year, ICE director John Morton announced that he was rescinding the federal-state contracts that agreed to Secure Communities, leaving states little choice but to participate.

Lawmakers in some states and cities have since attempted other ways to work around the program. Most recently, California Attorney General Kamala Harris issued a bulletin to law enforcement agencies in the state with the legal opinion that they needn't comply with ICE orders to detain an individual for deportation. From her bulletin earlier this month:

Several local law enforcement agencies appear to treat immigration detainers, sometimes called “ICE holds,” as mandatory orders.  But immigration detainers are not compulsory.  Instead, they are merely requests enforceable at the discretion of the agency holding the individual arrestee.

Agencies in the state -among them the Los Angeles County Sheriff's Department - have since revised policies to reflect Harris' direction on immigrant detainers.