Thomas Esparza & Jacqueline L. Watson, immigration law specialists Austin, Prosecutorial Discretion

Thomas Esparza Jr.

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PRACTICE ADVISORY1

Updated June 24, 2011

PROSECUTORIAL DISCRETION: HOW TO ADVOCATE FOR YOUR CLIENT

By Mary Kenney

Highlights of the June 17, 2011 Morton Memoranda on Prosecutorial Discretion

On June 17, 2011, John Morton, Director of Immigration and Customs Enforcement

(ICE), issued two new memoranda encouraging the expanded use of prosecutorial

discretion by ICE officers, agents, and attorneys in all phases of civil immigration

enforcement. The first outlines in detail how ICE employees should approach a wide

range of opportunities to apply prosecutorial discretion in line with ICE enforcement

priorities; the second describes specific protections for certain crime victims, witnesses,

and plaintiffs.

These recent memoranda are significant: if followed in the field, more intelligent

exercises of prosecutorial discretion should be forthcoming. Building on decades of

agency guidance, the first memorandum sets forth a broad range of alternatives for ICE

personnel and encourages targeted enforcement on a case-by-case basis. This new

guidance provides the broadest and most explicit instruction, setting the agency’s

enforcement priorities as the standard for the exercise of prosecutorial discretion. The

memorandum outlines who within ICE is authorized to make discretionary enforcement

decisions and what factors they should consider. Furthermore, ICE personnel are

encouraged to consider proactively the appropriate exercise of discretion as early in a

case or proceeding as possible. John Morton, Director, ICE, “Exercising Prosecutorial

Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency

for the Apprehension, Detention, and Removal of Aliens"(June 17, 2011) (hereinafter

“Exercising Prosecutorial Discretion").

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