Last June, U.S. Immigration and Customs Enforcement (ICE) Director John Morton outlined criteria for prosecutorial discretion in a memo, which called on ICE officials to consider a range of factors in determining whether an individual should be deported or not.
Here’s how the Immigration Policy Center described the memo after it was issued:
On June 17, 2011, Immigration and Customs Enforcement (ICE) Director John Morton issued two significant memoranda on the use of prosecutorial discretion in immigration matters. Prosecutorial discretion refers to the agency’s authority to not enforce immigration laws against certain individuals and groups. The primary memo (the Morton Memo on Prosecutorial Discretion) calls on ICE attorneys and employees to refrain from pursuing noncitizens with close family, educational, military, or other ties in the U.S. and instead spend the agency’s limited resources on persons who pose a serious threat to public safety or national security. Morton’s second memo focuses on exercising discretion in cases involving victims, witnesses to crimes, and plaintiffs in good faith civil rights lawsuits. The memo instructs “[a]bsent special circumstances or aggravating factors, it is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.”
A closer look at the Morton Memo on Prosecutorial Discretion reveals that it reaffirms many of the principles and policies of previous guidance on this subject. The memo, however, takes a further step in articulating the expectations for and responsibilities of ICE personnel when exercising their discretion.
Last June’s memo says that immigration agents and trial attorneys should weigh many factors before deciding to deport someone, including age at arrival in the U.S., family and community ties, and legal history (including time spent in the U.S. lawfully, existence or lack of any criminal violations, etc). The memo says:
This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.
However, implementation of the memo’s directives have been slow and bureaucratic. In fact, Morton recently told the House Subcommittee on Homeland Security that only 1% of pending deportation cases have been tabled under the new guidelines.
For thousands of immigrant families throughout the nation, the policies outlined in the prosecutorial discretion memo are not merely words on a page – they are a lifeline for keeping families intact. The guidance in the memo includes the common-sense rationale that mothers and fathers whose sole violations are tied to their desire to be with their families should be treated differently than serious criminals. However, the unfortunate truth is that even under this new policy, loving families continue to be separated.
A recent editorial from La Opinión, the nation’s largest Spanish language newspaper, decried the fact that “illegal reentry” has led to denials of prosecutorial discretion in several recent cases, despite sympathetic and compelling factors the government should take into account.
Currently, ICE conducted pilot programs on implementation of the discretion memo in two jurisdictions, Baltimore and Denver. At the conclusion of the review period, advocates in Colorado were “frustrated with the slow pace of implementation, narrowing of the criteria, and the lack of public education about how the policy is being implemented and can be accessed, especially by those who aren’t represented by attorneys.”
Next week, pilot programs will begin in four more jurisdictions, Seattle, Orlando, Detroit and New Orleans.
Broad application of the prosecutorial discretion guidelines is needed. The current case review “pilot programs” could be a first step in bringing rationality to our immigration enforcement system. But that has yet to happen. ICE officials need to deliver on the promise of the memo.
Whether the program works as it should on the national level will depend on whether ICE, CBP and USCIS personnel are properly trained and held accountable to the broadest possible exercise of discretion, and whether they truly consider all of the factors in any individual case and balance those factors in a fair and humane way.
Prosecutorial discretion is not a substitute for immigration reform. No matter how generously the prosecutorial discretion guidelines are applied, they provide no lasting and durable solution for the 11 million undocumented individuals living and working in the U.S. Major reforms of our immigration system need to be made through both legislative and administrative actions so that DREAM students, agricultural workers, and all of those who are working and contributing to the U.S. economy and society can earn permanent legal status and eventual citizenship.