Recently, U.S. Immigration and Customs Enforcement (ICE) issued a memo, noting that because of its limited resources, ICE needed to prioritize the use of its removal/deportation resources, “to ensure that the removals the agency does conduct promote the agency’s highest enforcement priorities, namely national security, public safety, and border security”. In other words, while ICE had the authority to deport every single illegal alien, it would focus on criminal aliens (i.e. terrorists, convicted of crimes with outstanding criminal warrants, etc.), recent illegal entrants, and aliens who are subject to a final order of removal. ICE would not necessarily expend time or resources going after every illegal alien.
U.S. Citizenship and Immigration Services (USCIS) also has the authority to issue Notices to Appear (NTA), and thereby initiate removal proceedings against aliens. Once the NTA is issued, USCIS transfers the case to ICE for handling.
However, USCIS’ “priorities” with respect to issuing NTAs may not be in sync with ICE’s priorities. Recently, USCIS seems to have taken the position that once USCIS has denied an application or petition, and if, as a result of that denial, the alien is “out of status”, USCIS would issue an NTA, put the alien into removal proceedings, and then transfer the case to ICE for processing. Therefore, while ICE is trying to allocate its limited removal resources and prioritize the “bad guys”, USCIS is issuing NTAs for everybody, without regard to ICE’s policy on prioritizing removal for the bad guys.
In fact, I recently attended the annual conference for the American Immigration Lawyers Association (AILA) in Washington, D.C. where ICE officials discussed the recent ICE memo on NTA prioritization. They lamented that because USCIS also has the power to issue NTAs, USCIS was effectively hampering ICE’s ability to implement its prioritization policy, since USCIS was issuing NTAs for almost every case that it was denying.
I fully realize that anyone who is out of status is subject to removal. However, there are so many criminals and other bad guys who should really be the top priority for immigration enforcement. Some of these “priority” aliens remain in detention for years, at a cost to taxpayers of at least $125 per day, because the immigration courts are backlogged with low priority removal cases.
While USCIS has the authority to issue NTAs, I think that they need to get together with ICE, and use that authority sparingly for “low priority” type cases, and not over-burden ICE with prosecuting such low priority cases, or filling the courts with cases that pose no threat or danger to national security. In short, USCIS should not be creating extra, unwanted work for ICE. Instead, USCIS should join with ICE, and go back to exercising “prosecutorial discretion”, by not trying to deport/remove every single alien who’s case is momentarily denied.
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