New York Lawyer's Legal Updates

USCIS Changes Guidelines On Detainers: Only Serious Misdemeanors And Felonies Will Trigger Detention

Author: US Immigration Lawyer Alena Shautsova

USCIS reconsider its policy on detainer issuance and on December 21, 2012 issued a new Memo confirming that only serious misdemeanors and felony charges and/or convictions will trigger issuance of immigration detainers.

It is a well-known fact that when a person who is not a US citizen is charged with a crime in the US, he/she becomes a target for removal for the Immigration authorities. The ICE representatives review the records of all the detained/charged persons in State and Federal facilities and determine whether or not they are going to initiate removal proceedings. Until recently, almost every charge, even for an insignificant misdemeanor violation would cause ICE to file a detainer and would force a person to defend themselves in an Immigration court right after they are bailed out/released from the jail.

Recognizing that there are more and more low priority cases that end up in immigration court system this way, USCIS finally decided to “give immigrants a break” and implemented a new policy stating that even though the ICE agents and officers still shall exercise discretion as to whether or not initiate deportation (removal) proceedings, they should take into consideration the following negative conditions. If the following conditions are present, a person can be almost sure that he/she will end up in Immigration court (if not a subject to an expedited removal):

  • Prior felony conviction/or a pending felony charge;
  • Three or more prior misdemeanor convictions, but not minor convictions like traffic violations;
  • misdemeanor conviction/pending charge of a misdemeanor conviction for violence, threats, assault; sexual abuse or exploitation; DUI; flight from the scene; unlawful possession of firearm or deadly weapon; the distribution or trafficking of a controlled substance; other significant threat to public safety
  • conviction of illegal entry/entry after prior removal;
  • outstanding order of removal;
  • immigration fraud found by an IJ or an Immigration officer;
  • the individual is a significant risk to national security.

We hope that that the new policy will be followed by the agents; it should in fact decrease the number of low-priority cases in Immigration court and allow “serious” cases to be placed on the calendar more expeditiously.

30 December 2012
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