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”).
