Prosecutorial Discretion from the Department of Homeland Security?

Prosecutorial Discretion from the Department of Homeland Security? I’ll believe it when I see it. 

I spend a good amount of time reading through articles on the latest immigration buzz.  Since this summer, a lot of it has been centered on prosecutorial discretion in civil immigration enforcement. 

On June 17 of this year, Director John Morton of Immigration and Customs Enforcement (ICE) issued a memo meant to set guidelines on exercising prosecutorial discretion.  The June 17 memo, often referred to as “the Morton Memo”, builds on an earlier memo setting enforcement priorities.  The Morton Memo acknowledges that the Department of Homeland Security (DHS) has limited enforcement capacity, and that it should focus its resources on aliens that represent the largest threat toU.S. interests. 

Let’s look a little at the political background of the memo.  Hispanic voters gave President Obama a boost in the 2008 elections, at least in part because he supported a comprehensive immigration reform package (check out this WSJ post).  The president also said he would sign the DREAM Act, which came closest to passage in 2010, but couldn’t get by a filibuster.  

In the meanwhile, the president, who had taken a lot of pressure from the less-immigration crowd, was also expanding enforcement operations.  The Obama administration has greatly expanded Secure Communities, an ICE program where local law enforcements officers provide biometrics of those they book so that they can be checked against the DHS database for immigration violations.  I think the political calculation was that by expanding enforcement, the administration could create a bargaining chip for other reform and at the same time not look too soft on immigration. 

As a result of Secure Communities and other heightened enforcement initiatives, there have been more removals (what we used to call deportations) per year under the Obama administration—close to 400,000 removals per year—than ever before.  As it works out, that hasn’t thrilled the more-immigration crowd, including many Hispanic voters, who had helped out the president in 2008.  I hate to be cynical, but I think that the Morton Memo was meant to try to throw pro-immigration Obama supporters a bone. 

Now keep in mind that I’m an immigration attorney and my views may be skewed.  However, I think the Morton Memo, if it were actually used in a meaningful way, would make a lot of sense.  Even though there have been record numbers of removals the last couple of years, there are still something like 11 million people in the country without legal status—there are just not enough resources to remove everyone who is removable. 

The system is swamped.  Court dockets are ridiculous.  I’ll give an example:  I have a client that was picked up in May 2010.  We went to court earlier this month for the client’s first hearing, which was only a master calendar hearing—basically ten minutes in front of an immigration judge to see if the alien has any defense worth a longer, individual hearing.  My client got an individual hearing in September 2014.  Yikes. 

So the idea of the Morton Memo is that if ICE encounters someone, whether in a workplace raid or in court, who doesn’t pose much of a threat and has been in the country a while (maybe was brought in illegally as a child), that they should, on a case-by-case basis, consider terminating the case.  (Mind, such a termination does not give the alien any legal status—it puts them in immigration limbo, sometimes with permission to work).  With courts so full and such a large pool of removable aliens to choose from, it makes sense to go after the most harmful and least established first. 

In practice, I haven’t seen any change in the way removals are conducted.  Mind you, that is anecdotal, and I only see what happens in the courts—maybe enforcement priorities have changed drastically at the policing level.  But I haven’t seen any numbers that would suggest any change, either.  I’ve read an article about someone who had their removal terminated.  I’ve seen judges ask DHS attorneys it they had considered requests for discretion submitted by respondents—some had, but none had agreed to it.  Today, as I was writing this blog, a colleague emailed me to tell me she had a case continued so that DHS could consider a request for discretion.  But nothing tells me that there has been any major policy shift, at least at the immigration court level. 

This past month, ICE issued another memo, this one mandating that just about all cases DHS has pending in the immigration courts be reviewed to see if discretion, as set by the Morton Memo, would be appropriate.  According to the memo, the initial review is set to end by January 13, 2012 (about two months).  Considering the staggering number of pending removal cases, I don’t expect the initial review will do much more than help DHS realize that any truly meaningful review would have to last years and years.  Maybe this is the foundation of mechanisms needed to make the Morton Memo meaningful, but I’m not holding my breath.

This Post Has 2 Comments

  1. Elizabeth S. Murrar


    You raise some very good points and concerns. Immigration reform is much needed and seems slow in coming. This is quite disappointing for the immigrant community and advocates. President Obama made some significant campaign promises to the Hispanic and other immigrant communities. Unfortunately, as in many other arenas, Congress has been stonewalling.

    As you note, under President Obama’s leadership, enforcement has shot up. I suppose that the president was trying to appease the anti-immigrant crowd before asking for their cooperation with immigration reform. Again, as in so many other areas, he gave his opponents what they wanted first and then they refused to give anything in return. As an Immigration Attorney, I see many frustrated families who believed that President Obama was going to bring real change to immigration policy but so far, he has not come through. The American Immigration Council – Immigration Policy Center has suggested that the president has some executive power that he could use to improve the current situation independent of congress. (

    Prosecutorial Discretion seems to be the main avenue that they promote (though they also suggest extensions of various forms of humanitarian relief as well). As you mention, the implementation of prosecutorial discretion is a very necessary change which DHS has, up to this point, been slow to implement.

    Candidly, neither prosecutorial discretion nor comprehensive immigration reform are issues that should divide us politically. For those who are willing to look at the economics, the need for both is clear.

    As you state, we currently have 11 million undocumented persons in the U.S. (though I have seen some estimates closer to 12 million.) As of January 26, 2011, US Immigration and Customs Enforcement estimated the cost of arresting, detaining, and removing an individual is $12,500. ( – page 84 of the pdf document.) The American Immigration Council has put together a wonderful factsheet on the economic issues involved in Immigration entitled “What Immigration Reform Could Mean for the U.S. Economy. ( Importantly, the AIC notes that to deport 10 million undocumented persons would cost approximately $41.2 billion dollars a year for 5 years whereas the entire budget for the Department of Homeland Security was only $47 billion in FY 2008. This means that there would be almost nothing left for their counterterrorism efforts, cybersecurity, airport or border security or processing immigration applications.

    Furthermore, the loss of these undocumented workers would cut $1.8 trillion in annual spending and $651 billion in annual output. The factsheet also explains why a process of legalization would bring in tax revenues and improve the job market for U.S. citizens.

    From a humanitarian perspective, deporting all undocumented immigrants would mean that around 4 million U.S. citizen children ( would either have to leave the U.S. or would lose their parent(s).

    Prosecutorial discretion is an important step for both economic and humanitarian reasons. I hope that DHS will begin to move on this. I agree that DHS’s anticipated timeline of a few months is likely not practical. My experience with DHS counsel lately leads me to believe that they are starting to realize that they are going to have to implement a policy of prosecutorial discretion. I just hope that they are able to come up with a good and clear policy and that they are able to start implementing it soon.

    However, DHS counsel is not the only part of the agency that has been authorized to exercise prosecutorial discretion. The various memoranda and the president have called on the ICE officers to exercise discretion when determining who to initiate the removal process against. In my opinion, the exercise of prosecutorial discretion at this level is also very important. These are the officers who decide whether to issue a charging document, called a Notice to Appear, which initiates the removal process.

    Also, I hope that this is only the beginning of reform. The issue of the 11 or so million undocumented people in the U.S. needs to be addressed. I have talked about why we cannot simply just deport them all. There is much to be said as to why we should not ignore them either – again for both financial and humanitarian reasons. But that is probably best left for another discussion.

    In the meantime, I am cautiously optimistic that change is coming. It has to…

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