Primary Document Analysis Chart

1.

2.
3.
4.
5.
6.

Document:
Type of
Document
Date(s) of
Document
Source

#1

Author/Creator
(Position)
Audience, if
specified
Document
Information

7.

Possible Bias
(up to 3 points)

8.

Lack of
Information (3)

Anna Bieganowska, Howard High School, 2015

A.

Specified Priorities

B.

Conditions of
Discovering
Priorities

C.

Exceptions/
Discretion under
Priorities

D.

Specified
Oversight of ICE/
Transparency
(room for checks
by affected
populations, etc.)

E.

Mentioned
Logistics
(resources)

#2

#3

#4

Memorandum (Print)

Memorandum (Print)

Website (Web)

Statute (Web)

Nov. 20, 2014 (executive action)

Nov. 20, 2014 (executive action)

Nov. 20, 2014 (after executive action)

June 13, 2003; amended Aug. 29,

2011 (before executive action)

U.S. Dept. of Homeland Security

U.S. Dept. of Homeland Security

U.S. Congress

Jeh Charles Johnson (Secretary of

DHS)

Jeh Charles Johnson (Secretary of

DHS)

U.S. Immigration & Customs

Enforcement (ICE), under DHS
-

Winkowski (ICE Director),

Kerlikowske (CBP Commission),
Rodriguez (USCIS Director),
Bersin (Assistant Sec. for Policy)
-national security, public safety,
and border security
-Level 1 (threats terrorism,
border, gang, aggravated felony),
2 (3+ misdemeanors, 1 if specified
significant misdemeanor, recent
entry 2014 on, visa abuse), 3 (final
order as of 2014)
-consider circumstances before
detention (illness, vulnerability,
primary caretakers, etc. listed)
-explicit exceptions for offenses
-across all DHS
-felony is not acted on if state
/local offense about status;
misdemeanors not if minor
traffic/status offense
-favorable (lack of) discretion
-cannot prohibit any removal
-mandatory detention still used
unless qualify for asylum/relief on
not seen as threat by officer
-guidance for officers offered
before memorandums
implementation
-data published annually to DHS
and public, capacity to do so
-created to track priorities
-intent: promote public confidence

Winkowski (ICE Director),

Kerlikowske (CBP Commission),
Rodriguez (USCIS Director),
Bersin (Assistant Sec. for Policy)
-emphasis on transfer for Level 1
(terrorism, gang, aggravated
felony) and 2 (just non-status
related misdemeanors) which
naturally fall under Priority
Enforcement Program (PEP)

public; concerned populations under

ICE custody, in proceedings, or with
removal orders

law enforcement agencies involved

(immigration and criminal,
typically federal)

-mentions Doc 1 memo priorities

-if you arent an enforcement
priority considered if in removal
proceedings

-any authorized immigration

officer may issue detainer at any
time

-PEP: state/local agencies submit

biometric fingerprinting to FBI
-notification request and detention
only with final order of
removal/probable cause
-detention allowed if final order of
removal/show cause that immigrant
is removable
-can transfer non-priority immigrant
if Office Director deems them threat
-cannot prohibit any removal but
state/locality chooses to transfer or
not

-updating procedures/training to
implement new executive action
-emphasis on identifying those
eligible for relief from custody/
proceedings
-if meet eligibility criteria to apply for
DACA/DAPA deferred action, can
apply on case-by-case basis
-no reconsideration process for
discretion, only explanation
-discretion not a basic right

-criminal justice agency may

contact DHS with documents to get
detention
-DHS sends detainer to advise
agency to hold in custody
-should issue detainer only when
immediate custody gain is
impractical/impossible
-detainer should advise, not
mandate

-Office of Civil Rights & Liberties

monitors states/localities of biased
policing, DHS will make remedial
measures if bias occurs
-data publications and analysis
- anti-detainer court decisions noted
-Intergovernmental Affairs informs
state/local agencies of changes
none

-case review: Enforcement &

Removal Operations (ERO) for in
custody; Office of Principal Advisor,
in court; ICE, removals
-may administratively close case
upon request (phone numbers given),
follow detainee-staff communication
guide
none

-lower officers may need

individual designation by Assistant
Sec. for ICE to issue detainer
-criminal justice agency
information (likely through
database) should provide
documents/records

-dependent on Task Force Advisory

on Secure Communities

-prosecutorial discretion dependent on

subjects initiation, not ICEs

-authority/how to be enforced
-specific resource allocations

-procedures of ICE actively reviewing

cases/using discretion
-specific changes from detainers

-assumes state/locality will/wants

to comply with immigration
enforcement
-oversight of DHS
-public/agency awareness
-specific resource allocations

-limited resources (personnel,

detention space, removal assets)
-dedicated based on priority level
-use discretion earlier to save costs
-appeasing to everyone
(dismisses old memoranda but
refers to them)
-duration of memo authority
-authority/how enforced, oversight
-specific resource allocations

-DHS has no financial

responsibility until actually
assumes custody

1.

2.
3.

4.
5.
6.

Document:
Type of
Document
Date(s) of
Document
Source

#5

Author/Creator
(Position)
Audience, if
specified
Document
Information

7.

Possible Bias
(up to 3 points)

8.

Lack of
Information (3)

A.

Specified Priorities

B.

Conditions of
Discovering
Priorities

C.

Exceptions/
Discretion under
Priorities

D.

Specified Oversight
of ICE/
Transparency
(room for checks by
affected
populations, etc.)

E.

Mentioned
Logistics
(resources)

#6

#7

Memorandum (Print)

Memorandum (Print)

Form/Notice (Print)

June 17, 2011 (before executive

action)

March 2, 2011 (before executive

action)

Dec. 12, 2011 (before executive

action)

U.S. Immigration & Customs

Enforcement (ICE), under DHS

U.S. Immigration & Customs

Enforcement (ICE), under DHS

U.S. Dept. of Homeland Security

John Morton (ICE Director)

John Morton (ICE Director)

all Field Office Directors, all

Special Agents in Charge, all
Chief Counsel

all ICE employees

law enforcement agency (currently)

holding immigrant

-priorities from Doc 6 memo

-discretion: favorable (U.S. armed
forces, legal permanent residents,
minors/elder, child arrivals,
pregnant, victim, health condition)
or unfavorable (clear national
security risk, felons, repeat
offenders, gang, serious crime)
-throughout enforcement process
when in the hand of ICE/other
immigration officer

-Level 1: danger to national

security/public risk (terrorism, SCdefined aggravated felonies then
misdemeanors; gangs; outstanding
criminal warrants, other risk), 2:
recent immigration violation at
border, POE, visa abuse, 3: final
order, including fugitives (can be 1)
-Level 2 & 3 are equal, but lower
priorities
-during apprehension, detention,
and/or removal

-prior felony conviction/charge

-3+ misdemeanor convictions (just 1
and /charge if serious violence,
sexual abuse, DUI, flight from
accident, illegal drug/weapon
possession)
-illegal entry, re-entry after removal,
immigration fraud
-identified in law enforcement
agencys custody, request to notify of
release and hold subject for 48 hours

-not guaranteed prosecutorial

discretion even when requesting
more information
-cannot prohibit any removal
-discretion not a basic right
-discretion defined as not using
full scope of enforcement
-ICE attorney must notify officer
if prosecutorial discretion used
-if dispute present between ICE
attorney and officer, goes to ICE
Chief Counsel

-emphasis that should not detain

those with health issues, caretakers,
pregnant, child arrivals, etc. and
discretion on LPR, juveniles, USC
-cannot prohibit any removal

-prioritize personnel, detention

space, and removal assets

-shape budget requests/execution

-can only remove 4% of illegal
-should not displace resources
needed for higher priorities
-undemanding of ICE personnel
(pro-enforcement)

-can choose that agency only acts if

subject is convicted
-vague otherwise poses risk (no
explanation) and other category
-can initiate proceedings, warrant of
arrest, or deportation before detainer
-notifying subject of detention and
legal options is optional
-exclude weekend/holiday in 48 hours
-immigration fraud must be
determined by officer/judge
-contact ICE Joint Intake Center if
held 48+ hours or liberties violated
-clarifies to holding agency that
subject can be removed; notify ICE
Law Enforcement Support Center
with concerns
none

-discretion not treated as standard

(pro-enforcement)
-impractical (case-by-case basis)
-authority/how enforced, oversight
-transparency
-specific resource allocations

-shall follow priorities

immediately
-measures for recording/evaluating
effectiveness by Oct. 1, 2010

-authority/how enforced, oversight

-vague terms (recent, repetitive
with Level 1 & 3)

-emphasis on what holding agency

should do (pro-enforcement)
-vague terms (immigration laws not
explained)
-transparency

Primary Document Analysis Chart

Key:
The abbreviations used below were defined as much as possible within the chart, but explanations for convenience are re-stated below.

- same as row above or unknown

Aggravated Felony unless stated separately, includes felonies as well as aggravated felonies to avoid repetition
CBP Customs and Border Patrol
DACA Deferred Action for Childhood Arrivals
DAPA Deferred Action for Parental Accountability
DHS Department of Homeland Security
Discretion used to mean prosecutorial discretion
Doc document number used in this particular document analysis (refer to Primary Document List)
DUI Driving Under the Influence of alcohol or another illegitimate substance
Executive Action refers to President Obamas Immigration Accountability Executive Action in November, 2014
ICE Immigration and Customs Enforcement
LPR legal permanent resident
Memo memorandum (plural: memorandum)
PEP Priority Enforcement Program
POE Ports of Entry
SC Secure Communities
Sec. Secretary, such as of a federal agency or department
USC United States Citizen
USCIS United States Citizenship and Immigration Services