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 through deportation or removal proceedings.
The Morton Memo calls on ICE attorneys and employees to exercise prosecutorial discretion and refrain from pursuing noncitizens with close family, educational, military, or other ties in the U.S. Instead, the memo instructed them to invest the agency’s resources for people who pose a threat to public safety or national security. It also articulates the expectations for and responsibilities of ICE personnel when exercising their discretion.
Two Premises for Prosecutorial Discretion
There are two historical basis for the use of prosecutorial discretion. First, it provided a framework to use the agency’s limited financial resources wisely. ICE only has the resources to remove 400,000 aliens per year, less than four percent of the illegal alien population in the United States. Therefore, ICE policy requires priority categories of individuals ICE seeks to target for arrest and removal. Priority 1 includes aliens who pose a danger to national security or a risk to public safety. Priority 2 includes recent illegal entrants. Priority 3 includes aliens who are fugitives or otherwise obstruct immigration controls.
Secondly, it represented a compassionate and humanitarian use of law-enforcement tools. Humanitarian factors for prosecutorial discretion include older age, existence of medical or mental health condition, the presence of family in the U.S., and positive contributions to the United States.
Exercising Prosecutorial Discretion
Prosecutorial discretion can be exercised in various forms by any branch of Department of Homeland Security (DHS) in the enforcement process. For example, an office may decide not to bring charges against someone who is out of status and is otherwise in the U.S. working. After an arrest, an officer may decide not to detain a person who does not appear to be a danger or a flight risk. A DHS attorney many decide against serving the individual and the court with a Notice to Appear because he appears to be eligible for a family benefit with United States Citizenship and Immigration Services (USCIS). It is to be noted that, regardless of the way prosecutorial discretion is exercised, the act itself does not give any substantive benefit or right of action to the noncitizen.
Factors for Prosecutorial Discretion
The Morton Memo on Prosecutorial Discretion clarifies the standard for prosecutorial discretion in five ways. First, it builds upon pre-existing policies on the subject. Second, it allows ICE trial attorneys to review charging decisions by DHS employees and dismiss low-priority cases. Third, it directly addresses the role of ICE attorneys during a removal proceeding and virtues of exercising discretion in those proceedings. Fourth, it encourages ICE employees and attorneys to consider prosecutorial discretion without waiting for the alien or alien’s counsel to request favorable exercise of discretion.
Finally, the Morton Memo offers a list of 19 factors pertaining to humanitarian circumstances that should trigger favorable exercise of prosecutorial discretion, such as persons’ pursuit of education in the U.S., criminal history, immigration history, possible threat to national security or public safety, etc. Likely, the Morton Memo identifies classes or persons who warrant “particular care” when making prosecutorial decisions, such as veterans and members of U.S. armed forces, long-time lawful permanent residents, minors and the elderly, pregnant or nursing women, victims of domestic violence, handicapped individuals, etc.
If you or a loved one are in immigration court proceedings, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to discuss your options and whether we might be able to help you.