Part 2: What is the Priority Enforcement Program and How is it Different Than Secure Communities?
In the last part of this blog, we discussed the demise of the Secure Communities program and the slow and somewhat undefined nature of its replacement, the Priority Enforcement Program, or PEP. In this section, we’ll delve into the new clarification brochure that ICE issued this month, and analyze how it can be used to help detained clients.
First, under PEP, ICE is no longer supposed to use the Form I-247 (Immigration Detainer Notice of Action), which, under the Secure Communities program, was served on the local detention facilities by ICE when they were requesting that a person remain in custody. Instead, they’ll use forms I-247N and I-247D. The 247N is a request (not a demand) that the local law enforcement agency issue an alert to ICE when a person is released from custody 48 hours prior to their release – it’s not a request that they actually prolong their detention.
The 247D, on the other hand, is a request for “voluntary action to execute a detainer,” which is very similar to the detainer that would have been issued under Secure Communities. However, there are some key differences that the June brochure spells out. First, the 247D is only supposed to be issued for detainees who fit into the narrow category of individuals who have been prioritized under DHS’s other Executive Action memoranda. This means that ICE won’t request a detainer for people who have only been detained on criminal charges but not convicted, and they won’t seek to detain people based on civil immigration offenses alone. Basically, they’ll only pursue detainers on people who pose a danger to public safety, have participated in criminal gang activity, or have been convicted of one of a list of specifically-enumerated crimes.
Another big difference is that under Secure Communities, a request for a detainer was supposed to be served on the detainee, but it was not a requirement. This resulted in the prolonged detention of thousands of people who had no idea why they were being held long after their criminal release. Under PEP, the detainer request is not legally effective unless a copy of it is physically served on the detainee.
PEP also changes the “48 hour rule.” Now, the 48 hours a detention facility is authorized (not required) to hold a detainee will include weekends and holidays. Under Secure Communities, Saturdays and Sundays didn’t count.
Finally, Under PEP, ICE must have “probable cause” that an individual is removable from the U.S. in order to issue a detainer. Under Secure Communities, they only had to have a “reason to believe” the subject was removable, which basically amounted to the majority of criminally charged non-citizens being detained. Now, ICE need to show that you are removable by indicating on the detainer that you meet one of the following criteria: 1) you have already been issued a final order of removal; 2) you are currently in removal proceedings before an immigration judge; 3) your biometric match shows you have no lawful status in the U.S.; or 4) you have made statements to an immigration officer indicating that you are likely removable or the officer possesses “other reliable evidence” to prove that you are removable.
These new requirements raise the bar for ICE to issue detainers, and also discourage them from placing detainers on individuals who do not have a biometric match in the ICE database. In practice, this means that if you are simply unlawfully present but have never had an encounter with ICE and your biometrics are not on file, you should not be detained after you are released from criminal custody. In the past, many detainers were issued to people who simply could not prove they were lawfully present if their information was not in the database. In effect, this shifts the burden from the detainee to ICE to show that the detainer is proper.
Now that we have some clarity on what PEP is and how it differs from Secure Communities, how can practitioners use the information to help detained clients? Stay tuned for part 3 of this blog which will discuss strategies.