The Priority Enforcement Program (PEP, sometimes also called PEP-COMM, PEP-Comm, or Pep-Comm) is a program by U.S. Immigration and Customs Enforcement (ICE), the agency responsible for immigration enforcement in the interior of the United States, under the U.S. Department of Homeland Security (DHS). PEP was an ICE program that worked with state and local law enforcement to identify undocumented immigrants (people who are not United States citizens or permanent residents) who come in contact with state or local law enforcement, and remove those who are removable (either because their presence is unauthorized, or because they committed an aggravated felony). PEP was announced by DHS Secretary Jeh Johnson in a November 20, 2014 memo as a replacement for Secure Communities (S-COMM). It builds on an updated list of immigration enforcement priorities released in another memo by Johnson issued on the same day.
The official rollout of the program started on July 2, 2015.
The enforcement priorities referenced in PEP were also relevant to other work by ICE as well as by U.S. Customs and Border Protection (CBP) related to immigration enforcement, apprehension, detention, and removal. However, PEP does not encompass these; PEP refers only to the ICE program that works with state and local law enforcement to identify and remove undocumented immigrants who come in contact with local law enforcement.
After the issuing of Executive Order 13768 by newly elected United States President Donald Trump on January 25, 2017, that revived the Secure Communities program, ICE discontinued the Priority Enforcement Program.
Components
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).
Priority 1 (prioritized for removal) includes noncitizens who meet one or more of these criteria: 1(a): national security threat 1(b): apprehended immediately at the border 1(c): gang member 1(d): convicted of an offense classified as a felony in the state or local jurisdiction, other than one related to immigration status 1(e): convicted of a felony or aggravated felony as defined by immigration law. Priority 2 (subject to removal) includes noncitizens who meet one or more of these criteria: 2(a): convicted of three or more misdemeanors 2(b): convicted of a serious misdemeanor. Serious misdemeanors are defined as offenses involving domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, and other crimes in which a defendant was sentenced to actual custody of 90 days or more. 2(c): entered the United States unlawfully after July 1, 2014 2(d): significantly abused visas or visa waiver programs Priority 3 (generally subject to removal) includes noncitizens subject to a final order of removal issued on or after January 1, 2014.
An exception can be made to removing an undocumented immigrant who fits these priority categories if in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate the undocumented immigrant is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.
The memo does not forbid DHS agencies (ICE and CBP) from apprehending, detaining, and removing undocumented immigrant who are not in any of the three priority categories. However, resources should be dedicated to undocumented immigrants in the priority categories, and the removal of any undocumented immigrant not identified as a priority should only be carried out if, in the judgment of an ICE Field Office director, the removal serves an important federal interest. In addition, detention should not be used for people suffering from physical and mental illness, the disabled, elderly, pregnant, nursing, or primary caretakers of children and infirm people without approval from an ICE Field Office director.
Enforcement priorities within the scope of PEP
Unlike its predecessor S-COMM, PEP is more limited in focus. In particular, it does not seek to take custody of individuals charged only with civil immigration offenses, or those charged, but not convicted, of criminal offenses. Rather, it is focused on priority subcategories 1(a), 1(c), 1(d), 1(e), 2(a), and 2(b) in the November 2014 immigration enforcement priority list. With the exception of 1(a) (national security threat), all the other subcategories under the aegis of PEP are directly related to criminal convictions.
Immigration detainers
One key component of S-COMM, the predecessor of PEP, was the use of ICE detainers, where ICE sent Form I-247 detainers to state and local law enforcement agencies (LEAs) asking them to keep undocumented immigrants for up to 48 hours in law enforcement custody to give ICE time to take the individual in ICE custody. These detainers came under criticism both for leading to unconstitutional detention and for the added costs borne by law enforcement agencies. PEP replaced the I-247 detainers with three new forms:
Form I-247N, Request for Voluntary Notification of Release of Suspected Priority Alien: The Form requests the local law enforcement agency to notify the ICE of the pending release from custody of a suspected priority removable individual at least 48 hours prior to release, if possible. The Form I-247N does not request or authorize the LEA to hold an individual beyond the point at which they would otherwise be released. Additionally, on the Form I-247N, ICE must identify the enforcement priority under which the individual falls. Form I-247D, Immigration Detainer - Request for Voluntary Action: The Form I-247D requests the receiving LEA maintain custody of the priority individual for a period not to exceed 48 hours beyond the time when they would have otherwise been released from custody. On this form, ICE must identify the enforcement priority under which the individual falls, as well as the basis for its determination of probable cause. The LEA must also serve a copy of the request on the individual in order for it to take effect. While similar to the original Form I-247, the need to state probable cause, as well as the requirement that the individual be served a copy, were an attempt to address some of the constitutional concerns surrounding detainers. Form I-247X, Request for Voluntary Transfer: This form is for enforcement priorities that do not fall under PEP. The Form I-247X requests the receiving LEA maintain custody of the priority individual for a period not to exceed 48 hours beyond the time when they would have otherwise been released from custody. The priority subcategories not covered by PEP, but for which ICE may otherwise seek transfer from cooperative jurisdictions are 1(b), 2(c), 2(d), and 3.
Below are some key differences between the old and new detainer policies:
The 48-hour limit on requests to maintain custody now includes Saturdays, Sundays, and holidays. The detainer form requires that the LEA give a copy to the individual detained in order to be effective. Detainers are used much more rarely, and must be accompanied by probable cause in addition to a priority subcategory. The following are permissible probable causes: A final order of removal Pendency of removal proceedings Biometric match indicating no lawful status or otherwise removable Statements by the subject to an immigration officer and/or other reliable evidence Detainers are no longer issued simply for not having a biometric match in ICE databases. Additional evidence is needed to constitute probable cause for detention.
Biometric database
Another component of PEP is the biometric database. Secure Communities was designed to enhance interoperability of state and federal biometric databases by automating a check against ICE and U.S. Citizenship and Immigration Services (USCIS) records when state identification bureaus (SIB) submitted fingerprints to the Federal Bureau of Investigation (FBI), and thus became known as IDENT-IAFIS Interoperability, referring to the databases used by United States immigration authorities and federal law enforcement agencies, respectively. Goodis, Robert, Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability: Recommendations for Effective Reform (April 27, 2015). Available at SSRN: https://ssrn.com/abstract=2630458 or https://doi.org/10.2139/ssrn.2630458
Under PEP, IDENT-IAFIS Interoperability remained unchanged from Secure Communities.Goodis, Robert, Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability: Recommendations for Effective Reform (April 27, 2015). Available at SSRN: https://ssrn.com/abstract=2630458 or https://doi.org/10.2139/ssrn.2630458 Also unchanged was the rollout to state and local law enforcement entities, wherein fingerprints or other biometrics collected by state agencies would automatically be checked against IDENT and IAFIS biometric databases, even over the objection of states and localities that sought not to participate in the immigration enforcement program.Goodis, Robert, Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability: Recommendations for Effective Reform (April 27, 2015). Available at SSRN: https://ssrn.com/abstract=2630458 or https://doi.org/10.2139/ssrn.2630458 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.Goodis, Robert, Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability: Recommendations for Effective Reform (April 27, 2015). Available at SSRN: https://ssrn.com/abstract=2630458 or https://doi.org/10.2139/ssrn.2630458
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.Goodis, Robert, Secure Communities, Priority Enforcement, and IDENT/IAFIS Interoperability: Recommendations for Effective Reform (April 27, 2015). Available at SSRN: https://ssrn.com/abstract=2630458 or https://doi.org/10.2139/ssrn.2630458 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.
The detainers in particular were the subject of criticism as well as legal challenge. Some courts ruled that holding people using the detainers (under some circumstances) was unconstitutional. For instance:
In Miranda-Olivares v. Clackamas County, a federal magistrate judge in Oregon ruled that, when Clackamas County officials detained a woman solely on the basis of an immigration detainer, they violated her Fourth Amendment rights.