When the Immigration and Customs Enforcement (ICE) in a memo last June instructed its personnel to avoid the deportation of “low priority” or non-criminal aliens, immigration advocates and immigrant communities all over the country welcomed it as a humane and sensible approach to immigration enforcement.
The Morton Memorandum, named after ICE Director John Morton, ordered its personnel to exercise “prosecutorial discretion” when handling cases of aliens who have no criminal history and are not risks to national security or public safety. It called on them to regularly exercise their discretion at any time during the immigration process in order to prioritize the use of the agency’s limited resources.
The memo listed at least 19 factors to be considered by ICE personnel when making enforcement decisions. These include lengthy residence in the U.S., pursuit of U.S. education, community ties, and having a U.S. citizen (USC) or lawful permanent resident (LPR) relative.
However, ICE offices apparently have not been following the memo in the past five months since it came into effect.
A survey of immigration practitioners by the American Immigration Lawyers Association (AILA) and the American Immigration Council (AIC) shows that implementation of the new policy has been sporadic at best.
For instance, in New York, removal proceedings were terminated for an alien who had been present since childhood and educated in the U.S. and had strong family and community ties.
On the other hand, relief was denied to a long-time LPR who had two misdemeanors from a long time ago but whose case involved many positive factors, including being a victim of domestic violence or serious crime, having a spouse with a severe illness, and being a primary caretaker of a sick or disabled minor relative.
In California, surveyed attorneys reported little to no change in practice since June. In one case involving an LPR with an abandonment charge, termination of removal proceedings was denied in spite of the equities of the case. The LPR had no criminal history or only minor offenses and had a USC/LPR relative; no negative factors were present.
Many ICE officers and attorneys were reported as having said that there is no change in policy or that things were “business as usual” until they get further guidance. For example, in the Honolulu ICE office, it was said that prosecutorial discretion is denied unless there are life threatening circumstances.
The findings also reveal that the standards are sometimes applied inconsistently or interpreted narrowly. In Florida, for example, an ICE attorney said that a prosecutorial discretion request would be considered at the beginning of the case and not at any other stage of the proceedings. An ICE agent in Seattle reportedly said that discretion to release an alien would be exercised only when a detention center is full.
Despite the clarity of the guidelines in the memo, there is evidently a gap between the leadership that issued the policy and the rank and file tasked to carry out the policy in practice. The AILA and AIC pressed the DHS and ICE in particular to issue additional guidance and hands-on training to its personnel.
In order to give effect to a policy not only approved at the executive level but in fact supported by President Obama, ICE agents and attorneys need to understand that it is their obligation to exercise discretion in accordance with the memo.