Earlier this week I expressed doubts that the June 17, 2011 prosecutorial discretion memo issued by John Morton, Director of Immigration and Customs Enforcement, would ever become reality.
My position as expressed in More Empty Talk Or The Real Deal This Time? remains unchanged.
Yet, to be clear, I believe Morton’s guidelines are a positive development in a system far too slanted to deportation and removal, regardless of an immigrant’s equities. As a deportation defense lawyer, I’ve seen too many instances where a little respect and dignity by immigration authorities would have prevented families from being needlessly separated.
My concern is that immigration-friendly discretion will not become reality due to a lack of true commitment by the president and ICE officers. Without the support from above and below, Morton’s plan has little, if any, chance of succeeding.
Nonetheless, over time, I could be proven wrong. So let’s briefly explore how the Morton guidelines could affect how immigration cases are handled.
What Does Prosecutorial Discretion Mean?
In short, “prosecutorial discretion” is the discretion given to an immigration officer to decide whether or not to enforce the law against a person. For example, if the ICE agent handling the case declines to pursue removal actions against an immigrant, the officer has favorably exercised prosecutorial discretion.
In the typical deportation defense case, this does not allow the detained immigrant to permanently escape removal from the United States. Instead, it puts the case on hold. This is called deferred prosecution.
Usually, this means the officer has reviewed the immigrant’s file and discovered, if the immigrant is not deported, he or she has a good chance to win the case.
In one of the more common scenarios, a family member, like a spouse, is eligible to obtain a green card and immigrate through his or her spouse, but they need a little time to get all the papers processed. The officer defers prosecution until the green card process is completed. If the immigrant wins lawful permanent resident status, the deportation case is dismissed.
19 Factors Of Discretion
In his memo, Morton outlined a non-exhaustive list of factors which should guide ICE officers:
- The agency’s civil immigration priorities
- The person’s length of presence in the United States, with particular consideration given to presence while in lawful status
- The circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child
- The person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degree at a legitimate institution of higher eduation in the United States
- Whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat
- The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants
- The person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud
- Whether the person poses a national security or public safety concern
- The person’s ties and contributions to the community, including family relationships
- The person’s ties to the home country and conditions in the country
- The person’s age, with particular consideration given to minors and the elderly
- Whether the person has a U.S. citizen or permanent resident spouse, child, or parent
- Whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative
- Whether the person or the person’s spouse is pregnant or nursing
- Whether the person or the person’s spouse suffers from severe mental or physical illness
- Whether the person’s nationality renders removal unlikely
- Whether the person is likely to be granted temporary or permanent status or other relief from removal, including as the relative of a U.S. citizen or permanent resident
- Whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime, and
- Whether the person is currently cooperating or has cooperated with federal, state, or local law enforcement authorities, such as ICE, the U.S. Attorneys, or Department of Justice, the Department of Labor, or National Labor Relations Board, among others
How Will The ICE Memo Affect Future Immigration Cases?
This is not the first effort to create a more humanitarian approach to deferred prosecution. Unlike the previous thirteen attempts, Morton’s 19 factors provides specific issues for ICE agents to review before deciding to place immigrants in deportation proceedings.
But there’s more than law at issue here.
Political considerations lurk in the background. Unsurprisingly, Morton’s memo addresses many of the administration’s immigration shortcomings.
- Law Enforcement
- DREAM Act
- Immigrants with Strong Family Ties
- Immigrant Military Veterans
- Immigrant Victims (Trafficking, Domestic Violence, Asylum)
No one factor, of course, will decide a case. But on a case-by-case basis, officers are now being asked to look at each case more carefully.
Their interviews should ask not only, “Is this immigrant here without legal papers?” They should also inquire about what, if any, remedies does this immigrant have now, or in the not-to distant future, for becoming a permanent resident. In my view, this is a 180 degree shift for them.
If ICE officers follow the Morton memo, countless immigrants will be spared from deportation. By avoiding prolonged immigration battles, deferred prosecution would decrease the government’s detention and prosecution costs – as well as lower expenses of immigration courts and appellate courts, including trials, appeals, motions to reopen, and motions to reconsider.
Based on my experience as a San Diego immigration lawyer, changing the culture of ICE, an agency accustomed to viewing the world through an “us versus them” lense, is a tall order. At best, it won’t happen overnight.
As a result, under the Morton plan, the role of immigration attorneys has also taken on a new dimension. They will need to fight for clients earlier in the immigration process, shortly after an individual is detained and taken into ICE custody.
Since many ICE officers will be reluctant to accept the policy shift, lawyers will need to exert their influence in a firm yet diplomatic manner. Lawyers cannot simply cave into the stubborn mentality of some ICE agents.
This also changes how immigration clients need to view their cases. In the past, many clients have been unwilling to pay for the assistance of immigration lawyers at this stage.
Whether a lasting change will take place is anyone’s guess. I’m not terribly optimistic but, with my clients’ lives on the line, I will certainly stretch the Morton memo as far as it can be stretched.
Yet, it’s important to remember the Morton memo is just that – a memo.
Immigrants have no right to a favorable exercise of discretion. Even Morton admits, nothing in his memorandum “should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the United States or to limit the legal authority of ICE or any of its personnel to enforce federal immigration law.”
Reforming the system won’t be easy, but it might be possible.
I’m ready for the challenge.
By Carlos Batara, Immigration Law, Policy, And Politics