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ICE extends prosecutorial discretion to detainer policy

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To focus on criminals and repeat offenders, Immigration and Customs Enforcement has applied the policy of prosecutorial discretion to decisions on whether to issue detainers.

In a Dec. 21 memo (.pdf), ICE Director John Morton instructed agents and officers to issue detainers to suspected illegal immigrants only if they have been charged with or convicted of a felony, have at least three prior misdemeanor convictions, have re-entered the country after a previous removal, or otherwise pose a security threat.

They should also issue detainers to individuals found to have knowingly committed immigration fraud and those who have illegally crossed the border, the memo says.

The new guidance applies to all ICE efforts, including Secure Communities and 287(g) agreements, which give state and local law enforcement agencies certain authority to enforce immigration law.

It does not apply to the use of detainers by Customs and Border Protection.

The memo calls for a review of the guidance for the first six months of implementation. ICE will consider changes based on the review after that.

Morton notes that the guidance doesn't limit ICE's power to enforce immigration law or confer any new rights on those subject to it. But, he says, "These priorities ensure that ICE's finite enforcement resources are dedicated...to individuals whose removal promotes public safety, national security, border security, and the integrity of the immigration system."

In fiscal 2012, ICE deported 409,849 immigrants. More than half of them had felony or misdemeanor convictions. That includes 1,215 immigrants convicted of homicide, 5,557 convicted of sexual offenses, 40,448 convicted of drug crimes, and 36,166 convicted of driving under the influence.

For more:
- download the Morton memo (.pdf)
- go to a press release with ICE's removal statistics

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