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The Golden Door

News and views on immigration law

The Meaning of Prosecutorial Discretion

September 26th, 2011 by Djung Tran

In the last few months, there has been a shift in the tenor of prosecution of immigration removal proceedings (deportation, in not-so-euphemistic terms).  Whether this shift is merely a superficial veneer that attempts to appease immigrant advocates but signifies nothing, or is an unlawful run-around of Congress that is allowing countless undocumented immigrants off the hook depends on who you ask.

The shift began with what is now known as the Morton Memo.  John Morton, Director of Immigration and Customs Enforcement (“ICE”), has issued several official memoranda during his tenure, but this memo has such potentially wide-ranging significance to ICE personnel and undocumented immigrants that it has been dubbed the Morton Memo.  In a nutshell, Director Morton’s June 17, 2011, memo directs all ICE personnel to take into account two factors when deciding whether to place a suspected undocumented immigrant into removal proceedings:  (1) that ICE has limited resources to deport everyone who is theoretically deportable and thus must pick and choose who to deport, and (2) that in deciding who to prosecute for deportation there are specific factors that will favor putting that person in removal proceedings and specific factors that favor leaving that person alone.  This is not new policy, but it shows a newfound boldness in announcing the policy and inviting immigrants and their advocates to request favorable prosecutorial discretion, and a renewed emphasis on the importance of implementing the policy.

The Obama Administration then followed up, through a letter dated August 18, 2011, from Department of Homeland Security Secretary Janet Napolitano to Senator Dick Durbin, by announcing that a review would be conducted of ALL individuals currently in removal proceedings to determine whether they fall within DHS’s high priority categories for removal or whether they would merit the favorable exercise of discretion under the Morton Memo’s specific factors.  For the latter group, removal proceedings would be suspended.

When I was asked by WHYY reporter Elizabeth Fiedler what I tell my clients as an immigration lawyer when they ask what this policy shift means to them, I told her that, “This is not a total out.  It does not get them out of the removal situation.  It is like a suspension of an ax over their heads.”  The new policy can make a difference when an undocumented immigrant is in removal proceedings – or threatened with removal proceedings – and has not committed any crimes or otherwise shown a lack of good moral character.  The policy helps if the immigrant came as a child, and has established deep roots here, such as having U.S. citizen or legal permanent resident spouses or children, or if the immigrant have served honorably in the military or is a well-educated individual ready to contribute to society, and so on.  But the Morton Memo and the shift it represents can change with the next presidential administration, and does not grant undocumented immigrants any new rights, such as work authorization or the golden ring, a green card.

So, while the new emphasis on prosecutorial discretion is a positive development for undocumented immigrants who, aside from their undocumented status, are free of criminal histories and are just trying to build good lives for themselves and their families, this policy shift is not any kind of amnesty, and can be revoked with the next change in administration. If you have concerns regarding the policy, you should consult your immigration lawyer. Pennsylvania residents can contact Tran Law Associates.

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933


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