Priority Enforcement Program

Enforcement priorities referenced in PEP The Priority Enforcement Program relies on updated enforcement priorities released in a November 20, 2014 memo by DHS Secretary Jeh Johnson (note that these enforcement priorities apply DHS-wide and are not limited to PEP). These detainers came under criticism both for leading to unconstitutional detention Under PEP, IDENT-IAFIS Interoperability remained unchanged from Secure Communities. Through the rollout to state and local agencies, ICE could automatically be notified if a fingerprint in their database gave a positive hit for anyone run through a state or local jail or booking facility, enabling ICE to issue detainers and hold requests for persons who may have been stopped for nothing more than a minor traffic violation. == History ==

Dissatisfaction with the Secure Communities program Secure Communities, often written as S-COMM, was an effort pioneered in 2008 under George W. Bush and launched in 2009 under Barack Obama. The effort involved seeking cooperation from state and local law enforcement authorities in the enforcement of federal immigration laws. Two key ways that cooperation was sought were: • Biometric database: The ICE and FBI had been working together to merge their fingerprint databases. Local law enforcement agencies participating in S-COMM would be asked to send any fingerprints they took of arrestees to ICE. In practice, this would mean running an automated check against ICE's database, and notifying ICE's Law Enforcement Support Center in case of a match. • Detainer: If ICE is notified that a non-citizen has been arrested for a crime, ICE may place a detainer for the person. The detainer requests the jail to hold the person for 48 hours beyond the scheduled release date, so that ICE can take custody and initiate deportation proceedings. • In Galarza v. Szalczyk, the United States Court of Appeals for the Third Circuit ruled that Lehigh County officials had violated the Tenth Amendment by detaining Ernesto Galarza based on an ICE detainer after he had been granted bail after being arrested for a drug offense. Galarza was detained for more than 48 hours without notice of the basis of his detention or the ability to contest it. Three days later, immigration officials learned that he was a U.S. citizen, and he was released. The court agreed with Galarza that immigration detainers do not and cannot compel a state or local law enforcement agency to detain suspected non-citizens subject to removal. Other cases that would later be cited as reasons for discontinuing S-COMM include Morales v. Chadbourne, Moreno v. Napolitano, Gonzalez v. ICE, Villars v. Kubiatoski, and Uroza v. Salt Lake City. Overall, S-COMM was criticized for creating mistrust between law enforcement and local communities, by adding the enforcement of immigration laws to their job. The design of PEP-COMM would in part be motivated by efforts to address these criticisms. 2011 Morton memo On June 17, 2011, John T. Morton, director of ICE, issued a memo on prosecutorial discretion that would subsequently be widely referred to as the "Morton memo," "2011 Morton memo," and "prosecutorial discretion memo." A second memo pertaining to prosecutorial discretion for witnesses and victims of crime was also issued on the same day. November 2014 memos by Jeh Johnson (that led to the creation of the PEP) In November 2014, a number of announcements were made by the administration of then United States president Barack Obama surrounding changes to immigration enforcement. The most famous of these announcements was Deferred Action for Parents of Americans (DAPA). Like DACA, the goal of DAPA was to create an affirmative program (under USCIS) that some removable non-citizens could apply to in order to have their removal deferred. While Obama's main announcements were focused on affirmative programs (and therefore under the purview of USCIS), there were also updates on the immigration enforcement side, relevant to ICE as well as to CBP. These updates were announced in the form of two memos by DHS Secretary Jeh Johnson on November 20, 2014: • The first memo, titled Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants, was addressed to the heads of USCIS, ICE, and CBP. It listed a new set of enforcement priority categories and subcategories, along with some guidance on how to apply these new categories in determining whether to apprehend, detain, or remove individuals. One of the provisions of the bill reinstated the Secure Communities program and increased its funding. However, the bill was blocked in the Senate. Official rollout starting July 2015 On June 12, 2015, ICE released details on the new forms (I-247N, I-247D, and I-247X) as well as a brochure providing more information on PEP. Cook County Board of Commissions Toni Preckwinkle issued a statement with a similar sentiment. In contrast, the Los Angeles County Sheriff Department, that had withdrawn from the 287(g) program and was generally averse to local law enforcement cooperating with ICE, is participating in PEP. In May 2015, the Board ruled to look into participating in PEP. In September 2015, an official decision to participate in PEP was reached. Discontinuation in 2017 In January 2017, Donald Trump took office as President of the United States, after a campaign where he promised stricter immigration enforcement policies. On January 25, Trump issued Executive Order 13768 titled Enhancing Public Safety in the Interior of the United States. Among other things, the Executive Order revived the Secure Communities program. In a Q&A published on February 21, 2017, the United States Department of Homeland Security clarified that it was discontinuing the PEP and reinstating Secure Communities due to the executive order. == Reception ==

Reception by state and local governments and law enforcement agencies In the wake of the killing of Kathryn Steinle by an undocumented immigrant, police chiefs and sheriffs from jurisdictions throughout the United States signed a letter to Chuck Grassley and Patrick Leahy arguing that PEP was a good way forward for local law enforcement and DHS to cooperate without overburdening local law enforcement, and that there was no need to pass additional legislation requiring state and local cooperation with federal immigration agencies. Local law enforcement agencies that had participated in S-COMM are continuing to participate in PEP, whereas those that had withdrawn from S-COMM have been evaluating PEP but not made a decision either way regarding participation. In June 2015, the ACLU penned an open letter to Jeh Johnson with recommendations for improving PEP. Among the recommendations in the letter was the requirement that the probable cause notices be approved by a judge (i.e., judicially determined). ACLU's criticism of PEP was covered by the Washington Post in an article on the program's rollout. NDLON also filed a Freedom of Information Act request to learn more about the program. The National Immigration Law Center was also critical of PEP, citing both constitutional concerns and its effect of causing the separation of families. Angela Chan, policy director of the Asian Law Caucus, said that there were alarming similarities between S-COMM and PEP, and also said that Obama's slogan of "felons, not families" should be considered in the context of many communities being overpoliced and overcriminalized. The Immigration Policy Center has taken a more cautious approach, noting that PEP is an improvement over S-COMM in principle, but awaiting further details on the implementation. The report was cited in the Washington Times and by NumbersUSA, an advocacy group favoring low immigration numbers. Quoting from the report, NumbersUSA noted that PEP even ignored the implementation of some of the priority subcategories identified in the November 2014 memo (specifically, 1(b), 2(c), 2(d), and 3). == References ==