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Prosecutorial Discretion – Does the “New” Morton Memo Change Anything?

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Secure Communities ProgramIn an effort to reform the Secure Communities Program, John Morton, the Director of the U.S. Immigration and Customs Enforcement (ICE) issued a memorandum on June 17, 2011 allowing for an increase in the exercise of prosecutorial discretion from ICE officials.  The Secure Communities program which was established in 2008 currently exists in over 1400 of America’s 3141 law enforcement jurisdictions.  Participating jurisdictions send the fingerprints of arrested individuals to a database managed by ICE which allows ICE to determine which of the arrested individuals do not have legal status.  The Secure Communities Program has led to 77,000 immigrants being  deported.  Many critics of the program note that those guilty of misdemeanors are disproportionately targeted as 60% of those deported under the program in 2010 were Level 3 offenders, individuals guilty of one misdemeanor such as a minor traffic violation.  The reality is that this memo once more gives discretion that was already available, but lacks real substance to change anything.

Legally speaking the memo does little more than try to appease the complaints against Secure Communities to prevent its demise.  In addition, the Morton memo is feeble effort to cover a panoply of complaints by human right activists that victims of domestic violence would have no ability to report a crime.  Complaints from military personnel and veterans who were being deported for minor crimes or whose families were being torn apart is also mentioned in the memo but with no enforcement effect.

Given the problems that exist with the Secure Communities Program, John Morton issued new guidelines for ICE officials to exercise prosecutorial discretion.  The memorandum cites the importance of balancing ICE’s limited resources with the importance of removing aliens that represent ICE’s enforcement goals including “national security, border security, public safety, and the integrity of the immigration system.”  Prosecutorial discretion will give ICE authorities the ability to determine to what extent to enforce immigration laws against a particular person.

Under the new guidelines, ICE officials will be able to exercise “new” enforcement decisions including canceling a notice of detainer or a notice to appear (NTA).  Among other provisions, ICE officials will also be given increased authority on what detained individuals should be released on bond or supervision and settling or dismissing an immigration proceeding. Again, these were all  previously available. If ICE chooses not to do so they still have full discretion to do that also and the respondent, applicant or their attorney has no power against this.

In his memorandum, Morton also listed several factors to be considered for ICE officials when exercising prosecutorial discretion.  Although Morton notes that the list “is not exhaustive  and no one factor is determinative” factors for ICE officials to consider include the person’s criminal and immigrant history, the person’s ties and contributions to the community, whether the person has a US citizen or permanent resident as a child or parent, and the health of the person detained.  Certain positive factors should lead to prompt care and consideration including veteran status and victims of domestic violence.  Additionally, Morton also notes certain negative factors that should lead to special care from ICE officials such as individuals that pose a risk to national security.

Most organizations are waiting to see how Morton’s new guidelines will be implemented before passing judgment.  Various communities with large immigrant communities are waiting for Morton’s reviews of the new prosecutorial discretion to decide if they eventually want to opt into the Secure Communities Program.  Many law enforcement agencies believe that the Secure Communities Program casts too wide a net and will lead to witnesses and victims fearing arrest and  the police.  However, the ACLU believes that the new level of prosecutorial discretion will have little impact with the new provisions not placing “adequate checks on law enforcement agencies in racial profiling and pretextual arrests.”

In addition to new guidelines for prosecutorial discretion, Morton also announced other reforms to the Secure Communities Program.  These include new training materials for communities that choose to implement the program, a complaint system for the program, and regular statistical reviews of the program.  This will not provide any relief as the memo lacks clear direction or review when discretion is not exercised.

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