President Barack Obama's executive action on immigration gives immigration officers broad discretion not to deport potentially dangerous illegal immigrants — including those engaged in terrorism or espionage — as long as those officers don't believe they pose a threat to public safety.
It also encourages immigration officers to consider "humanitarian" factors when making these decisions, such as whether the immigrant is in poor health or has a sick relative in the United States.
That discretion is outlined in a memo from Homeland Security Secretary Jeh Johnson that describes three levels of priority for deportations under the executive action Obama described Thursday night.
"Priority 1" is defined as aliens who are suspected of terrorism or espionage, those who are caught crossing the border, or other aliens convicted of a felony. While it said the "removal of these aliens must be prioritized," it gives immigration officers some wiggle room that could let them decide not to deport these immigrants.
"The removal of these aliens must be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, 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 alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority," the memo read.
DHS said factors that officers should consider when making these judgment calls include "extenuating circumstances" related to the case, how long ago the offense occurred, how long the immigrant has been in the United States, military service, family ties, and status as a victim.
But it also said other reasons can include "compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative."
"These factors are not intended to be dispositive nor is this list intended to be exhaustive," it said. "Decisions should be based on the totality of the circumstances."
Officials also have the discretion not to deport other immigrants who are lower on the priority list for deportation.
For example, "Priority 2" immigrants are aliens who are convicted of three or more misdemeanors, or one "significant" misdemeanor, such as sexual abuse or domestic violence, drug trafficking, or other crimes.
The memo says these immigrants "should" be removed, unless they qualify for asylum or if officers find there are "other factors indicating the alien is not a threat to national security, border security, or public safety."
The third priority are aliens who have been ordered for removal on or after January 1, 2014. The memo said these are the lowest priority illegal immigrants, and that they too can be excused from deportation if there are factors "suggesting the alien should not be an enforcement priority."
Read the DHS memo here: