Immigration Customs and Enforcement (ICE) Director, John Morton, recently released a memorandum on prosecutorial discretion. The memo does not completely fix the country’s current dysfunctional immigration system, but it holds promise and does represent a good faith attempt by Mr. Morton to move towards smart immigration enforcement.
The memorandum will allow ICE agents and trial attorneys to concentrate the country’s limited law enforcement resources on going after dangerous criminals and terrorists instead of hardworking immigrants who just happen to be tangled up in our messy immigration system.
Many are skeptical about Morton’s memo and are afraid that it would have the same fate as the first memorandum on prosecutorial discretion known as the Meissner Memo. The Meissner Memo came in response to a letter of protest from a bipartisan group to then Attorney General Janet Reno and INS Commissioner Doris Meissner regarding the Administration’s failure to use prosecutorial discretion on dangerous immigration violators. The Meisner Memo limited prosecutorial discretion to cases that presented “substantial federal interest,” but it did not define that it meant. The Morton Memo, on the other hand, provides more guidance by applying a standard to determine when to use discretion. The question becomes whether a particular case meets the Administration’s enforcement priorities which were defined in another Morton Memo on March 2, 2011 and focuses on dangerous criminals and national security risks.
According to Morton’s memo, prosecutorial discretion can be used affirmatively by ICE at any stage of removal proceedings even when a case is being appealed in circuit court. However, use of discretion is preferred at the early stage of proceedings to avoid unnecessary expense to the government. Perhaps most compelling about Morton’s memo is that it gives ICE agents and trial attorneys the authority to do what is right by using discretion. At the very least, the memo allows ICE agents and trial attorneys to focus our country’s resources on those dangerous individuals who pose a threat to our communities and country.
The memorandum can be found at: http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf
March 2, 2011 Morton Memo: http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf
Meissner Memo: http://www.scribd.com/doc/22092970/INS-Guidance-Memo-Prosecutorial-Discretion-Doris-Meissner-11-7-00
