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Scholars United Behind DREAM Act

seth — Fri, 17 Dec 2010 17:19:40 +0000

Washington D.C. - Last week, more than fifty leading university professors urged Congress to pass the DREAM Act, noting that both their academic research and their work as teachers compelled them to speak out on behalf of the undocumented students whose future hangs in the balance over today's vote. Today, nearly 400 scholars from across the U.S. (including all 8 Ivy Leagues) have signed onto the letter.

These scholars, who have dedicated their professional lives to studying migration-related issues, noted:

We, a group of university professors who study immigration and the circumstances confronting these young people, and who have many of these students in our classes, believe passing the DREAM Act is the right thing to do for our nation's immediate interests and for our long term security... After decades of research it is clear that, by punishing the children of undocumented immigrants, this country is creating a disenfranchised group of young people cut off from the very mechanisms that would allow them to contribute to our economy and society ... It is especially troubling and wasteful that some 2.1 million unauthorized children, American in spirit but not in law, are now enrolled in U.S. schools but will not be able to lawfully gain employment at the end of their education.

Over these last weeks and months we have seen our own students--those who are in our classrooms--struggle to meet school expenses, graduate from our universities, and then face uncertain futures and the constant risk of deportation. But we have also witnessed their incredible capacity to thrive despite debilitating circumstances. Gaby Pacheco, who, along with 3 others walked from Miami to Washington DC, holds three degrees from Miami Dade College. She dreams of practicing music therapy with autistic children... What is to be gained from limiting her opportunities?

[The DREAM Act] is an important step in fixing America's broken immigration system, and it should be passed. U.S. raised children, like Gaby Pacheco, who benefit from the Dream Act will see their hard work rewarded and, in turn, will contribute even more to the U.S., through higher earnings and taxes paid. And they will be our future teachers, community leaders, and professionals. As we think of students like Gaby Pacheco and the impact they are currently making, let us imagine the potential impact--and multiply it by 2.1 million. The America that we believe in, and that these idealistic youth believe in, would pass the Dream Act.

Ben Johnson, Executive Director of the American Immigration Council, stated: "The support of these university professors for their students, driven not only by their compassion but by their years of research, is further evidence that the DREAM Act offers America a chance to begin the process of rebuilding our broken immigration system, allow deserving students to contribute to the country they love, and drive the economic growth of our nation for the next generation."

Published On: Fri, Dec 17, 2010 | Download File

Investing in the American DREAM

seth — Thu, 02 Dec 2010 19:13:29 +0000

The DREAM Act Would Allow Undocumented Youth to Give Back to America

By Roberto G. Gonzales

Each year, tens of thousands of undocumented immigrant students graduate from American high schools and embark on uncertain futures. Their inability to legally work and receive financial aid stalls, detours, and derails their educational and economic trajectories. Most importantly, at any time, they can be deported to countries they barely know. The Development, Relief, and Education for Alien Minors (DREAM) Act is a federal bill aimed at providing immigration relief to these young people. The passage of this bill would grant many undocumented youth access to legal residency and federal financial aid—thus removing legal and economic barriers to higher education and increasing their contributions to America and the likelihood of upward mobility.

Why Does America Need the DREAM Act?

All American youth, particularly those living in poverty, experience significant challenges when they try to further their education and realize their dreams. Paying for college tuition, supporting one’s family, and getting to school and work on public transportation all present difficulties. Additionally, having the parental support, mentoring, school support, and other early interventions necessary to successfully navigate higher education is important for future success.

However, undocumented immigrant youth—those who migrate at early ages and reside in the United States without legal permission—confront an even more troubling mix of circumstances which make succeeding in higher education even more difficult. Their tenuous situation is the result of a confluence of confusing and contradictory laws that allow them to legally attend school, but deny them the opportunities to work, vote, receive financial aid, and drive in most states. At any time, they can be deported to countries they barely know. These young men and women, growing up amid harsh contexts and an elevated climate of fear, represent a sizeable and vulnerable population in need of policy solutions.

As growing numbers of undocumented students have matriculated to colleges and universities across the United States, their plight has gained increasing attention. Over the last few years, support for the DREAM Act has grown, and there have been significant efforts pressuring Congress to pass it into law. The public has been presented with stories of high achievers—leaders on their campuses and in their communities—whose talents are wasted because current laws do not allow them to pursue their dream careers. These stories of exceptional hard work and exemplary civic engagement resonate with American values and remind us of success stories told about previous waves of immigrants.

Passing the DREAM Act is an important first step towards fixing our broken immigration system. It creates a way for bright and talented young people who grew up in America to legalize their status and achieve their dreams. It is a bipartisan measure that has been around for a decade.

What is Holding Back Undocumented Youth?

Attending and paying for college can be difficult for many American families, but undocumented students face additional obstacles. Among undocumented immigrant students, the combination of scarce family resources and the exclusion from federal and state financial aid severely limit post-secondary goals. By law, undocumented students are barred from federal and (with the exception of New Mexico and Texas) state financial aid. Despite the existence of federal laws that outline their eligibility to attend a public K-12 school, our laws offer no legal guidelines regarding post-secondary options.

At one extreme, Alabama, Georgia, North Carolina, and South Carolina have attempted to ban undocumented young adults from access to their public two- and four-year institutions. However, to date, 11 states—California, Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington, and Wisconsin—have passed laws allowing undocumented students who qualify under certain provisions to attend public universities at in-state rates. But, with the exception of these states, most public universities classify undocumented youth as international students and charge them three to seven times more in tuition. Without financial aid, it is extremely difficult for most Americans to afford a college education. Given the limited economic resources of most undocumented youth, rising tuition rates and high overall cost of post-secondary education are daunting, if not prohibitive. As a result, only a small fraction of undocumented high school graduates moves on to institutions of higher learning.

Beyond the restricted access to financial aid, undocumented students cannot participate in a host of federally funded programs designed to assist low-income students. Practically, this means that several outreach programs that provide services critical to low-income and first-generation university students—such as academic support assistance, skills-building, and research opportunities—are off the table for undocumented students. Additionally, immigration laws prohibit undocumented students from activities such as study abroad programs, which entail travel outside the country, and any paid internships or student employment.

Today’s undocumented youth and young adults are coming of age amid a hostile political backlash and rising anti-immigrant sentiment. Over the last decade, as hate crimes aimed largely at Latino immigrants have gained increasing visibility, federal immigration raids of workplaces and private homes have intensified, resulting in the deportation of hundreds of thousands of immigrants. In this last fiscal year, ending September 30^th, the U.S. deported 392,000 immigrants. Swept up in this immigration “dragnet” have been many high school graduates and college and university students who have been detained, put into deportation proceedings and, in some cases, deported.

When Doors No Longer Open, Dreams Die

At some point during their adult lives, doors stop opening altogether for undocumented youth. Whether it is a series of blocked opportunities within the labor market or the end of educational opportunities, there comes a time when these young men and women run out of options. These moments contradict everything these young people have been taught in school and send the message that their dreams will not be realized and that all of their hard work was in vain.

In most respects, these young people are already important members of U.S. society. After completing an education in our schools, they envision their futures here, and powerfully internalize American values and expectations of merit. However, there are currently no available structural paths out of poverty for these young men and women. Paradoxically, their efforts to adapt and contribute economically are met with legal obstacles. Rather than valuing them as important societal resources, current policies restrict their options and curb the transformative potential they have in their communities. Without full legal rights, they are barred from the very mechanisms that have ensured high levels of economic and social mobility to other immigrants throughout U.S. history. Such denial is enough to set them on a path of disenfranchisement, poverty, and frustration.

This also means there is significant lost potential for the U.S. Without the incentive and means to continue their education, undocumented youth are not continuing their education, and the U.S. is losing out on their productivity, entrepreneurship, and creativity, as well as tax revenue from their potentially higher earnings.

Opening Up a Path Allows DREAMers to Give Back to America

Undocumented immigrant youth and young adults in the United States are victims of an outdated immigration system. They have the right to a primary and secondary education and, with some notable exceptions mentioned earlier, are generally allowed to go on to college. But their future prospects are severely restricted due to their undocumented status. From a public policy perspective, it makes sense to intervene when a sizable subset of our population is vulnerable and disenfranchised. The economic costs of continuing failed policies only reinforce the necessity of such action.

Findings generated from my six years of in-depth research on the circumstances confronting undocumented immigrant youth and young adults underscore the need to regularize the status of this population of more than 2.1 million nationally. Undoubtedly, legalization lifts the biggest barrier these young people confront, as it allows them to legally participate in a world in which they have already been socialized. They grow up in the United States and have few recollections of any other country. They are as Marcelo Suarez-Orozco so aptly suggests “de facto but alas not de jure . . . full members of the American family.”

Providing viable pathways to legalization can help to lift these young people out of poverty, integrate them into adult society, and give them opportunities to compete for financial aid and jobs. This is not to say that their legal peers are easily and automatically proceeding to upward mobility through traditional means. The alarmingly low educational attainment levels of many Latin American and Southeast Asian origin students are manifested in their low high-school completion rates. However, for the 2.1 million undocumented youth and young adults, legalization could further bolster their efforts and motivate them to continue to achieve academically.

When provided opportunities to improve their circumstances, undocumented immigrants have responded positively. For example, undocumented immigrants who received legal status under the 1986 Immigration Reform and Control Act (IRCA) have moved on to significantly better jobs over time and increased their wages by roughly 15% within five years. In states that provide in-state tuition at public colleges and universities, beneficiaries have done as well as their legal counterparts and better than undocumented students in states without such provisions. Given the opportunity to receive additional education and training and move into better paying jobs, legalized immigrants pay more in taxes and have more money to spend and invest. It is, therefore, likely that if currently undocumented youth were granted legal status, they would not only improve their own circumstances, but make greater contributions to the U.S. economy.

By passing the DREAM Act, Congress would give undocumented youth a path toward realizing their full potential and an opportunity to give back to the country that has given them the opportunity to succeed. Young people who qualify for the DREAM Act are Americans in every way but their citizenship. They came here in the arms of their parents, and have little knowledge of the country they left behind. They excelled in American schools and J-ROTC programs, and they simply want a chance to succeed in the only country they know as home.

America is the land of opportunity, where every individual has a chance to succeed or fail on his or her own merits. The DREAM Act was crafted in that spirit. Congress should do the right thing, and make those DREAMs a reality.

Published On: Thu, Dec 02, 2010 | Download File

Reading the Morton Memo: Federal Priorities and Prosecutorial Discretion

seth — Tue, 30 Nov 2010 21:56:53 +0000

By Shoba Sivaprasad Wadhia

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.

A close reading of the Morton Memo reveals, however, that it is likely to be subject to multiple interpretations, offering some guidance but little clarity for handling the hundreds of thousands of decisions made annually by ICE agents regarding the arrest, detention, and removal of individual immigrants. This report explains the key provisions of the Morton Memo, points out its strengths and weaknesses, and offers recommendations for additional guidance that should be issued to fulfill the promise of reform suggested in the memo itself.

What’s In a Name? Criminal Aliens

Issued on June 30, 2010, the Morton Memo identifies priorities for immigration officers to follow in the apprehension, detention, and removal of noncitizens. It contains a striking statistic: that ICE has funds to deport approximately 400,000 noncitizens per year, which is less than 4 percent of the estimated population of undocumented noncitizens present in the U.S. In light of this limitation, and in an effort to streamline ICE resources in a manner that focuses on the most serious offenders, the memo outlines three priorities, the first of which is the highest and the second and third constituting equal but lower priorities: individuals who 1) pose a public safety risk or danger to society, defined in part by a history of terrorist or criminal activity; 2) recently entered the United States through means other than a valid port of entry or border checkpoint; and 3) have been identified by ICE as remaining in the United States with an outstanding order of removal “or otherwise obstruct immigration controls.”

Looking more carefully at these priority categories raises numerous questions, particularly in Priorities 2 and 3. ICE defines the highest priority cases as follows:

Priority 1. Aliens who pose a danger to national security or a risk to public safety

The removal of aliens who pose a danger to national security or a risk to public safety shall be ICE's highest immigration enforcement priority. These aliens include, but are not limited to:

aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;
aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders;
aliens not younger than 16 years of age who participated in organized criminal gangs;
aliens subject to outstanding criminal warrants; and
aliens who otherwise pose a serious risk to public safety.

ICE’s focus on individuals who “pose a danger to national security or a risk to public safety” appears reasonable on its face. However, the agency has a long history of ignoring this calculus or applying the standard of dangerousness beyond its ordinary meaning. While the Morton Memo contains a qualifying clause advising officers not to read “otherwise pose a serious risk to public safety” too broadly, the cautionary note is dropped in a footnote and lacks specific examples and explanations; thus, it likely will be overlooked or disregarded by officers in the field.

For noncitizens convicted of crimes, the Morton Memo further prioritizes enforcement within this first category into three “Levels” based on the following criminal convictions:

Level 1: “aggravated felonies as defined in [the immigration statute], or two or more crimes each punishable by more than one year.”
Level 2: “any felony or three or more crimes punishable by less than one year.”
Level 3: “crimes punishable by less than one year.”

While these levels represent a logical progression, and emphasize convictions over mere arrests or suspicious activity, they nonetheless lack sufficient detail. The discussion of priorities fails to address further distinguishing characteristics that would create even lower prioritization within these levels. For instance, what priority should be given to certain individuals convicted of nonviolent crimes, those with strong equities such as family or employment inside the United States, or those convicted of crimes for which they served no actual time in prison.

Moreover, placing all persons convicted of an “aggravated felony” categorically within Level 1 is misleading, because “aggravated felony” under immigration law is a broad term that does not require that a person be convicted of an actual felony or an aggravated crime. To illustrate, in immigration cases, the aggravated felony definition encompasses shoplifting offenses and other misdemeanors. While the Morton Memo remarks in a corresponding footnote that “…‘aggravated felony’ includes serious, violent offenses and less serious, non-violent offenses, agents, officers, and attorneys should focus particular attention on the most serious of the aggravated felonies…,” this qualification, as expressed, is insufficient. It will be too easy for an officer to overlook this footnote, particularly because it does not contain specific examples that will educate officers less familiar with the spectrum of “aggravated felonies.”

Similarly, in describing the Level 3 offenses covering misdemeanor crimes, the Morton Memo advises officers to exercise “particular discretion” for less serious misdemeanor offenses. Again, this advisal is reduced to the form of a footnote and is likely to lead to confusion. For example, what constitutes “particular discretion” as opposed to the exercise of discretion promoted in the text of the Morton Memo? If an officer confronts an individual with a misdemeanor conviction that is “more” serious than a traffic stop but “less” serious then a violent crime, is the officer to exercise “less” particular discretion?

Priorities 2 and 3. The other priority categories are described in the memo as of lesser importance, but of equal priority, a categorization that seems confusing on its face. The memo states:

Priority 2. Recent illegal entrants

In order to maintain control at the border and at ports of entry, and to avoid a return to the prior practice commonly and historically referred to as "catch and release," the removal of aliens who have recently violated immigration controls at the border, at ports of entry, or through the knowing abuse of the visa and visa waiver programs shall be a priority.

Priority 3. Aliens who are fugitives or otherwise obstruct immigration controls

In order to ensure the integrity of the removal and immigration adjudication processes, the removal of aliens who are subject to a final order of removal and abscond, fail to depart, or intentionally obstruct immigration controls, shall be a priority. These aliens include:

Fugitive aliens, in descending priority as follows:

fugitive aliens who pose a danger to national security;

fugitives aliens convicted of violent crimes or who otherwise pose a threat to the community;

fugitive aliens with criminal convictions other than a violent crime;

fugitive aliens who have not been convicted of a crime;

Aliens who reenter the country illegally after removal, in descending priority as follows:

previously removed aliens who pose a danger to national security;

previously removed aliens convicted of violent crimes or who otherwise pose a threat to the community;

previously removed aliens with criminal convictions other than a violent crime;

previously removed aliens who have not been convicted of a crime; and aliens who obtain admission or status by visa, identification, or immigration benefit fraud.

What is most notable about these categories is the wide range of offenses collapsed within them. The Morton Memo’s second priority category is essentially those who recently entered the United States out of compliance with the law, while the third priority are those who were issued removal orders by the agency and remain in the United States—pejoratively described by ICE as “fugitives”—and “others” who obstructed immigration controls. While a detailed description of these noncitizen classifications is beyond the scope of this report, it is worth noting that individuals without a criminal history or in some cases without actual knowledge that they are in violation of immigration law, can readily fall into ICE’s new Priority 2 and 3 categories. For example, many individuals are subject to removal orders issued in absentia who failed to appear at their hearings only because they never received notice of those hearings. Such an individual would have a legitimate basis to move to reopen their case, but is treated no differently from other cases in which someone deliberately avoided a removal order.

The Morton Memo also accepts as a given, the necessity of pursuing “fugitive aliens” and “absconders” without acknowledging the failures of the Fugitive Operations Program, which has repeatedly been found to encourage the arrest and detention of individuals who do not fall into high priority categories. Additionally, some of the classes that fall into Levels 2 and 3 are likely candidates for future legalization programs, making their relatively high prioritization troubling and confusing. Similarly, the memo’s categorization of individuals who “otherwise obstruct immigration controls” in Priority 3 is over inclusive at best.

Prospectively, without specific data about the number of noncitizens pursued by immigration agents under the aforementioned priorities, it will be difficult to calculate how the Levels are being applied and what oversight capacity the agency possesses. For example, if the data shows that Level 3 offenders are among the highest of ICE arrests, and also includes those convicted of relatively minor violations for which they served little or no time in jail, this would raise concerns about whether ICE has focused on the truly dangerous. Similarly, if the data shows that half of the ICE resources are being used on Priority 2 and Priority 3 noncitizens, one could reasonably conclude that the priorities have been improperly applied. In this way, the benchmarks identified by ICE regarding whether the Morton Memo is in fact being implemented properly are as important as the scope of data collection. As I note in the recommendations, making this data available to the public is critical.

Detention

Once individuals have been arrested, a second prioritization is anticipated under the Morton Memo which outlines the criteria for determining whether or not to release an individual on bond or further detain them. The memo notes:

As a general rule, ICE detention resources should be used to support the enforcement priorities noted above or for aliens subject to mandatory detention by law. Absent extraordinary circumstances or the requirements of mandatory detention, field office directors should not expend detention resources on aliens who are known to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant, or nursing, or demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest. To detain aliens in those categories who are not subject to mandatory detention, ICE officers or special agents must obtain approval from the field office director. If an alien falls within the above categories and is subject to mandatory detention, field office directors are encouraged to contact their local Office of Chief Counsel for guidance.

Despite a relatively clear articulation of vulnerable groups who should be released from detention whenever possible, there remains a great likelihood that officers will struggle with those instances where an individual falls within the “Mandatory detention” category but are nonetheless in one of the humanitarian release groups. “Mandatory detention” is a controversial legal term of art that applies to categories of people who are subject to detention and lack the opportunity to request bond or release from custody in the short term. Because mandatory detention applies to broad classes of noncitizens, including but not limited to certain lawful permanent residents (green card holders), those with less serious or nonviolent criminal histories, and asylum seekers fleeing persecution who arrive in the U.S. without all of their paperwork, there is a strong need to further clarify what options are available to an officer. While the memo encourages the officer to seek further guidance from ICE counsel in these circumstances, inconsistent application is likely without further guidance. There is an underlying difficulty not addressed by the memo: how will officers address those cases where someone falls under Level 3 priority for purposes of arrest, but if arrested is subject to mandatory detention. Without further guidance, an immigration officer might interpret the mandatory detention language to mean that any person subject to mandatory detention should be arrested because he or she is a detention priority.

Further clarification on the classes of vulnerable populations is also warranted. While “aliens who are known to be suffering from a serious physical or mental illness” should be not be detained if not subject to mandatory detention, there will clearly be disagreement between reasonable minds over what constitutes a sufficiently serious level of illness, particularly with respect to mental health. This problem may be further complicated if persons who are arrested are not examined and screened thoroughly at the time of arrest. Other categories of vulnerable groups are absent, including survivors of trauma or torture, suggesting that the general guidance will require far more detail in order to be fully carried out.

Prosecutorial Discretion

The final substantive section of the memo briefly recaps the agency position on prosecutorial discretion. The inclusion of a discussion on prosecutorial discretion, although brief, is a significant statement of ICE’s intent to guide officers towards common-sense enforcement of the immigration laws. It is a particularly important reminder at a time when many politicians criticize the government for exercising discretion in the enforcement of immigration law, arguing for a policy that would deport everyone. The memo notes:

The rapidly increasing number of criminal aliens who may come to ICE's attention heightens the need for ICE employees to exercise sound judgment and discretion consistent with these priorities when conducting enforcement operations, making detention decisions, making decisions about release on supervision pursuant to the Alternatives to Detention Program, and litigating cases. Particular care should be given when dealing with lawful permanent residents, juveniles, and the immediate family members of U.S. citizens. Additional guidance on prosecutorial discretion is forthcoming. In the meantime, ICE officers and attorneys should continue to be guided by the November 17, 2000 prosecutorial discretion memorandum from then-INS Commissioner Doris Meissner; the October 24, 2005 Memorandum from Principal Legal Advisor William Howard; and the November 7, 2007 Memorandum from then-Assistant Secretary Julie Myers.

For those unfamiliar with ICE guidance, however, the rather cryptic references to past memoranda probably limits the impact of this paragraph, particularly as ICE has embraced the principle of prosecutorial discretion in the past, but its officers have not necessarily followed it. A brief review of prosecutorial discretion is thus in order.

For years, long before the demise of the Immigration and Naturalization Service (INS) and creation of the Department of Homeland Security (DHS), the Attorney General was empowered to exercise prosecutorial discretion to make charging decisions and weigh equities, balancing questions of resource management and humanitarian concerns against potential harm. The Secretary of DHS retains that authority and through delegation to immigration officials, is able to enforce the immigration laws against some people, and not others, potentially resulting in a more targeted pool of those actually investigated, charged, detained, and/or removed from the United States. The use of prosecutorial discretion has been controversial, insofar as groups and individuals with compelling hardships or strong equities, such as steady employment, family connections, and business ties in the U.S., nonetheless have been targeted by the agency for removal. Moreover, reasonable minds disagree about whether the profiles of those removed from the U.S. match the agency’s pledge to crack down on the truly dangerous.

The INS first made public its philosophy of prosecutorial discretion in 1975 following a noteworthy lawsuit involving music legend John Lennon, and his wife Yoko Ono. Thereafter, INS issued guidance in the form of an “Operations Instruction” (O.I.) to describe the situations in which prosecutorial discretion should be favorably exercised. That now-defunct Operations Instruction advised officers to consider “(1) advanced or tender age; (2) many years' presence in the United States; (3) physical or mental condition requiring care or treatment in the United States; (4) family situation in the United States—effect of expulsion; (5) criminal, immoral or subversive activities or affiliations. If the district director's recommendation is approved by the regional commissioner the alien shall be notified that no action will be taken by the Service to disturb his immigration status, or that his departure from the United States has been deferred indefinitely, whichever is appropriate.” While the O.I. itself was later amended and then rescinded altogether, the factors contained therein have been reiterated in subsequent agency policy memoranda, and leading immigration law treatises. For example, a memorandum issued by then INS Commissioner Doris Meissner in November 2000 (Meissner Memo) acknowledged the continued vitality of the O.I. in deferred action cases and also specified a list of largely humanitarian-related factors former INS should consider when exercising prosecutorial discretion.

The Meissner Memo that was later adopted by DHS is cited, along with subsequent agency memos, as guidance that remains in effect under the Morton Memo. Nonetheless, from a drafting perspective, placing the discussion of prosecutorial discretion at the end of the document minimizes its effect. While the Morton Memo suggests that additional guidance on prosecutorial discretion is forthcoming, the agency’s practice has been to issue piecemeal memos on prosecutorial discretion based on specific circumstances. This is a cumbersome process that can be confusing and lead to inconsistent interpretations. Offering a clear and overarching guidance, such as the 2000 Meissner Memo, should be a priority for the Administration. Moreover, clarifying that prosecutorial discretion should be emphasized at every step of the immigration enforcement process—from investigation to arrest, from detention to actual removal—may be the single most effective way to ensure that prioritization is put into practice.

Oversight and Accountability

The Morton Memo contains an effective date of “immediately,” increasing the probability that officers will be confused about how to implement the broadly defined priorities. It is unclear whether ICE officers tasked with implementing the Morton Memo have been adequately trained not only about the language and interpretation of the newly stated priorities, but also on the various prosecutorial discretion directives referenced in the Morton Memo and on how to resolve potential conflicts and contradictions. The Morton Memo also contains this construction clause: “Nothing in this memorandum should be construed to prohibit or discourage the apprehension, detention, or removal of other aliens unlawfully in the United States. ICE special agents, officers, and attorneys may pursue the removal of any alien unlawfully in the United States.” Practically speaking, this clause may confuse individual ICE officers about noncitizens they encounter who do not fall into one of the priority categories outlined by the Morton Memo and in fact may encourage them to arrest and detain those with status violations who pose no flight risk or danger to society.

The Morton Memo ends with stated goals for creating an instrument to measure ICE’s effectiveness in measuring the priorities outlined therein. Absent from the memo are specific types of data ICE intends to collect to measure such effectiveness and the public’s ability to access this data.

Recommendations and Conclusion

While the Morton Memo directs ICE officers to prioritize based on resources and strategic objectives; its impact turns on whether officers can exercise prosecutorial discretion consistent with a thoughtful and compassionate sense of judgment. Historically, this has not been done and the success of the Morton Memo will ultimately be judged on whether it is implemented with consistency and accountability. To achieve this, the following recommendations are offered:

Training: ICE employees at every level should be trained on the various directives on prosecutorial discretion with specific methods for applying humanitarian factors.

Data Collection: ICE should collect information about the number and categories of noncitizens targeted in the wake of the Morton Memo to determine whether the stated priorities are being followed and/or if there is a need to refine the priorities. Similarly, ICE should develop measures to track the instances where officers decide not to target an individual based on the framework set forth in the Morton Memo. Such information must be publicly available.

Accountability: ICE must have an instrument for holding officers accountable when the Morton Memo is not followed. For example, if a particular officer has a history of targeting Priority 3 or nonpriority noncitizens, appropriate disciplinary action must be taken. Consideration must also be given to identifying an agency outside of ICE, such as the DHS Office of Inspector General, to monitor the officers’ performance through an audit or investigation.

Conflict Resolution: What is the vision of the Morton Memo and how do its contents correspond to the Administration’s stated support for broad immigration reform? ICE should identify which portions of the Morton Memo as applied or as written conflict with or contradict the agency’s stated desire to focus resources on the truly dangerous, and the Obama Administration’s stated desire to afford legal status to contributing noncitizens in the U.S.

Beyond the Morton Memo, all components of DHS must engage in a serious discussion about the creation of a consistent and overarching policy that guides the actions of its officers, incorporating prosecutorial discretion into its policies and rulemaking. Only then can prosecutorial discretion be exercised in a way that is both economical and fair. Even with the greatest administrative reforms to prosecutorial discretion, the need for Congress to implement holistic changes to the domestic immigration system are in clear order, and a critical ingredient to restoring the true meaning of discretion.

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