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Administration Watch

The Morton Memo and Prosecutorial Discretion: An Overview

By Shoba Sivaprasad Wadhia, Esq.

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.

Published On: Wed, Jul 20, 2011 | Download File

Understanding Prosecutorial Discretion in Immigration Law

Updated 09/09/11 -Frustrated by the lack of comprehensive immigration reform, many advocates, from grassroots community organizers to Members of Congress, have begun calling on President Obama to take action. They want the President and his administration to use the power of the executive branch to defer removals, revisit current policies and priorities, and interpret the law as compassionately as possible. The specific requests vary greatly. Senators Richard Durbin (D-IL) and Richard Lugar (R-IN), for instance, last year asked the Department of Homeland Security (DHS) to defer the removal of young people who qualified for legal permanent residence until such time as their legislation, the DREAM Act, became law. In April 2011, nineteen Democratic and Independent U.S. Senators, including Senators Harry Reid (D-NV), Richard Durbin (D-IL), and Kristin Gillibrand (D-NY), reiterated the call to stop the removal of all students who meet the strict requirements of the DREAM Act. While the DREAM Act is frequently invoked, many community groups have also  called for exercising prosecutorial discretion in individual cases by declining to put people in removal proceedings, terminating proceedings, or delaying removals in cases where people have longstanding ties to the community, U.S.-citizen family members, or other characteristics that merit a favorable exercise of discretion. Read more...

Published On: Thu, May 26, 2011 | Download File

Deportation in the Time of Cholera: DHS's Mixed Response to Haiti's Earthquake

By Royce Bernstein Murray, Esq.

The dramatic announcement on May 17, 2011 that the Department of Homeland Security (DHS) would extend Temporary Protected Status (TPS) for another eighteen months to Haitians, including those who entered the country no later than January 12, 2011, is a welcome step forward in the saga of the Haitian earthquake. The decision to extend and redesignate Haiti for TPS has been a long time coming and reflects more than a year of solid effort on the part of advocates and the Haitian community. In many ways, DHS’s handling of the devastating January 2010 earthquake in Haiti is emblematic of the triumphs and tribulations discussed in a recent report issued by the Immigration Policy Center, Second Annual DHS Progress Report: An Analysis of Immigration Policy in the Second Year of the Obama Administration. This critique found that the immigration agencies appear to be tackling issues affecting Haitians independently, failing to coordinate their enforcement and benefits-oriented policies. At times, critical information was disseminated in a limited and ad hoc fashion, generating confusion and unease about DHS policies. Observers have been left questioning how DHS’s priorities are ordered and whether they are integrated at the department level. DHS’s latest actions offer hope that a more coordinated, thoughtful, and humanitarian approach will prevail. 

Published On: Thu, May 26, 2011 | Download File

Legal Experts Weigh in on Executive Branch Authority

President Obama’s insistence that his “hands are tied” by Congressional inaction on immigration has raised questions about how much executive power the President has when it comes to immigration. To this end, top immigration law experts, including former counsels to the agencies that manage immigration, have drafted a legal memo outlining the scope of executive branch authority and examples of its use in the immigration context.

Published On: Mon, May 02, 2011 | Download File

Second Annual DHS Progress Report

By Royce Bernstein Murray, Esq.

In its second year under the Obama Administration, the Department of Homeland Security (DHS)—which is responsible for the nation’s three immigration agencies (USCIS, CBP, and ICE)—continues to struggle with its competing missions of providing immigration benefits and enforcing immigration laws, all within the context of an outdated and broken immigration system. Over the past year, while waiting for Congress to act, the Administration has increased its emphasis on enforcement and deportation and denied its ability to provide administrative relief.   This report finds that, while DHS has made significant progress in some areas, there is much room for improvement. The report recommends that DHS act in line with its own stated priorities and exert its executive authority to bring about much-needed reforms that can be done in the absence of Congressional action.

Published On: Tue, Apr 12, 2011 | Download File

Reading the Morton Memo: Federal Priorities and Prosecutorial Discretion

By Shoba Sivaprasad Wadhia, Esq.

On June 30, 2010, the Deputy Assistant Secretary for Immigration and Customs Enforcement (ICE), John Morton, issued a memo to the agency that reflected the Obama administration’s oft repeated intent to focus removal efforts on serious offenders.  Morton noted:

In light of the large number of administrative violations the agency is charged with addressing and the limited enforcement resources the agency has available, ICE must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency's highest enforcement priorities, namely national security, public safety, and border security.  

Coupled with last year’s announcement that ICE would not engage in the kind of major worksite raids that became common during the Bush administration, the “Morton Memo” potentially marks a new phase in the enforcement of immigration law.  Moreover, the memo gives us insight into the Obama administration’s approach to prosecutorial discretion in immigration enforcement.Read more...

Published On: Wed, Dec 01, 2010 | Download File

Non-Citizens with Mental Disabilities

In 2009, Immigration and Customs Enforcement (ICE) detained approximately 380,000 people.  Roughly 15 percent of the non-citizen population in detention, or around 57,000 people, have a mental disability.  Unfortunately, these mental disabilities often go unrecognized by law enforcement and immigration officials, resulting in less access to justice for the individual and greater confusion and complexity for the attorneys and judges handling the cases.  The consequences of immigration enforcement for unauthorized immigrants, long-term permanent residents, asylum-seekers, and other non-citizens with mental disabilities can be severe.  Even U.S. citizens have been unlawfully detained and deported because their mental disabilities made it impossible to effectively defend themselves in court.

Teasing out the complicated issues of fair treatment for people with mental disabilities caught up in our broken immigration system is not easy, particularly because it must be disentangled from the many challenges facing all immigrants who find themselves in immigration custody or in proceedings before the immigration court.  As a report by Human Rights Watch and the American Civil Liberties Union aptly put it:Read more...

Published On: Tue, Nov 23, 2010 | Download File

ICE’S Enforcement Priorities and the Factors that Undermine Them

As part of its strategy to gain support for comprehensive immigration reform, the administration has continually touted its enforcement accomplishments.  In fact, over the last two years, the Obama administration has committed itself to a full-court press to demonstrate how committed the administration is to removing criminals and others who remain in the country without proper documentation.  They have continued to use the enforcement programs of the previous administration, including partnering with state and local law enforcement agencies to identify, detain, and deport immigrants.  However, in doing so, they have lost the ability to fully control their own enforcement priorities and enforcement outcomes, and the results have demonstrated that the state and local partners are not necessarily committed to the same priorities.

At an October 6, 2010, press conference, Secretary of Homeland Security Janet Napolitano announced that the Department of Homeland Security (DHS) had removed more than 392,000 individuals in Fiscal Year (FY) 2010, and presented other “record-breaking immigration enforcement statistics achieved under the Obama administration.”  In addition to record-breaking overall numbers, Napolitano also announced the “unprecedented numbers of convicted criminal alien removals” in FY 2010.  Of the 392,000 removals in FY 2010, more than 195,000 were classified as “convicted criminal aliens,” which was 81,000 more criminal removals than in FY 2008.Read more...

Published On: Tue, Nov 09, 2010 | Download File

DHS Progress Report: The Challenge of Reform

By Royce Bernstein Murray, Esq.

The month of March marks the seventh anniversary of the Department of Homeland Security (DHS) and its immigration agencies. It also marks the end of a sweeping internal review ordered by Secretary Janet Napolitano, a review which as not been made public. In order to assess the first year of immigration policy under the Obama Administration, the Immigration Policy Center releases the following Special Report which compare DHS's actions with the recommendations (Transition Blueprint) made to the Obama Transition Team’s immigration-policy group. How does DHS stack up? The following IPC report finds a department caught between the competing priorities of old broken policy and new reforms. While DHS has failed to meet key expectations in some areas, it has engaged thoughtfully and strategically in others, and has made some fundamental changes in how it conducts its immigration business.

Published On: Tue, Mar 02, 2010 | Download File