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Federal Government Emphasizes Legal Action against Serious Offenders

The Obama administration has long held the position that only criminals with serious criminal histories should face federal charges and deportation, but it recently reinforced this policy with subtle changes in law enforcement policies. As an immigration attorney in Austin, I am always concerned when the federal government or states institute policy changes which could make life more difficult for immigrants. Fortunately, in this case, it appears that the new changes in federal policy would limit prosecution for undocumented aliens involved in only minor legal incidents like traffic violations.

Last week, the Obama administration announced it would only issue detainers by the Immigration and Customs Enforcement (ICE) division if the suspect had a serious criminal history. Detainers are federal requests to hold immigration violators in local jails until federal law enforcement can take charge of them. A serious offender would be classified as anyone with a felony conviction or charge, three or more misdemeanor convictions, or a misdemeanor charge or conviction for drug trafficking, weapons possession, driving under the influence or sexual abuse. Detainers would also be issued for any immigrant who might pose a national security threat or re-entered the country illegally after deportation.

ICE has stated in the past the prosecutorial discretion should be exercised in the case of undocumented aliens involved in minor legal incidents, but deportations have crept up steadily throughout President Obama’s first term. In the past year more than 400,000 illegal immigrants were deported, and many of these were involved in only minor or non-criminal offenses.
Some of the over-enthusiasm for pursuing legal action can be attributed to local police groups who used the Secure Communities clause of federal law enforcement policies to fingerprint and hold immigrants without prior convictions or charges. The Secure Communities clause has also been defied by some states like California which have allocated law enforcement resources towards more pressing priorities.

Many local police have criticized the Secure Communities and detainers programs for alienating many law-abiding members of immigrant communities. Because police depend on these individuals to provide information about crimes, federal policies that breed distrust and fear of law enforcement are counter-productive. This has inspired many local law enforcement officers to ignore federal policies in many cases.

The recent announcement by the federal government that it would be limiting action helps diminish any conflicts of interest between federal and local law enforcement. The role of both branches is to enhance public safety, and allowing police to determine how best to proceed with minor offenders is in the best interest of the public. Cops can now devote precious resources to combating serious crime in local communities rather than detaining undocumented immigrants who pose no real threat to others.

Most immigrant communities should be pleased by this announcement, but it may be some time before its effect on police procedures can be accurately assessed. The federal government may still wish to issue a relatively large number of detainers if some local police forces request them.


As an immigration lawyer, I encourage immigrants with questionable residency qualifications to remain vigilant but also to entertain hope about the future. If you have questions about this or other immigration law issues, please feel free to request a private consultation with my office at (512) 215-5225.