New Immigration Policies and Criminal Convictions


President Obama has just signed an Executive Order putting in place new immigration policies. These policies will directly affect immigrants accused or convicted of crimes. There is a lot of confusion about how the new system will work, with some people claiming that the new system automatically grants amnesty to all undocumented immigrants, and others claiming that nothing has really changed.

Prior to the Executive Order, nearly all undocumented immigrants accused of a crime risked an ICE hold and deportation if convicted. The Executive Order has changed the way deportation works for those convicted of a crime. Now immigrants are sorted into three categories, based on the government’s priority for their deportation.

New priorities for immigration enforcement:

The three new categories for immigration enforcement:

Priority One:

Priority One covers undocumented immigrants deemed to be a danger to national security or public safety. People who have been convicted of gang activity, an aggravated felony (murder, rape, firearm or drug trafficking, etc.), or a felony for which the person’s immigration status is not an element of the crime receive priority one status.

Undocumented immigrants that fall under this category are the highest priority for deportation, unless they are granted asylum or there are compelling factors that demonstrate the immigrant is not a danger to the community or national security.

Priority Two:

Priority Two covers undocumented immigrants who are convicted of several state law crimes or serious misdemeanors. The following puts an undocumented immigrant under this category:

  • Conviction of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element was the alien’s immigration status, provided the offenses arise out of three separate incidents;
  •  Conviction of a “significant misdemeanor,” such as
    1. domestic violence;
    2. sexual abuse or exploitation;
    3. burglary;
    4. unlawful possession or use of a firearm;
    5. drug distribution or trafficking;
    6. driving under the influence; or
    7. an offense for which the individual was sentenced to time in custody of 90 days or more.
  • Undocumented immigrants apprehended anywhere in the United States after unlawfully entering or re-entering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically present in the United States continuously since January 1, 2014; and
  • Those who, in the judgment of an ICE Field Office Director, USCIS District Director, or USCIS Service Center Director, have significantly abused the visa orvisa waiver programs.

People who fall under this category are given the second-highest priority for deportation.

Priority Three:

This category covers those undocumented immigrants who don’t fall under the first two categories. This category is the lowest priority for deportation.

What these priorities mean:

Undocumented immigrants who are accused of crimes should be aware that if they are convicted, the details of their conviction are very important to their immigration status. Here’s an example: if an undocumented immigrant is accused of and pleads to a first-time DUI, this will put him under Priority Two, but if his charge is changed to a reckless driving he will fall under Priority Three (as long as the sentence doesn’t include 90 days in jail).

If you are an undocumented immigrant and have been accused of a crime, you should speak with an attorney to explore your options. Entering a plea without knowing the immigration consequences could result in being labeled as a higher priority, and deportation.