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Prosecutorial Discretion: An Analysis of the Morton Memorandum and Secretary Napolitano’s Announceme

Posted by attorney Irene Vaisman

On August 18, 2011, the Obama Administration and Department of Homeland Security (DHS) announced the creation of a deportation tier system. This system of review, named prosecutorial discretion, means that the government will begin accepting applications to stop deportations of non-citizens who pose no risk to the security of the country.These new procedures were created in order to give those people, who could otherwise be deported, a way to stay in the country without fear of arrest.

The multiplegovernmental agencies in charge of deportation and removal have created one unified, special committee that will handle the review of any cases currently pending. This ability to review cases will belong to every government officer in the immigration system including immigration officers and ICE agents, all of whom will have the ability to decide whether or not to pursue deportation proceedings. Those cases that are identified as low priority will be administratively closed, meaning that the case will taken off the active calendar docket, the proceedings are still technically open and can be reopened by both, the government or the alien. Likewise, the low priority cases may be terminated completely. In addition, other avenues for requesting prosecutorial discretion will remain open. ICE attorneys and officers will retain the authority to exercise prosecutorial discretion and given this announcement, may be more amenable to exercising it favorably than in the past.

These new guidelines will allow agencies to decide whether to issue or cancel a detainer; whether to cancel a Notice to Appear (NTA); who to stop/question/arrest; who to release on bond; whether to dismiss removal proceedings; whether to grant deferred action or a stay of removal; whether to allow a withdrawal of voluntary departure; and whether to reopen old cases for adjustment. It may be possible to adjust or obtain a work/employment authorization document through this program as well. Even people who have received a final order of removal are eligible to apply for prosecutorial discretion.

Although very new, these guidelines do outline those factors that would prevent a case from being administratively closed. These factors include serious felonies; repeat offenders; individuals with lengthy criminal records of any kind; known gang members; illegal reentries and border security violations in general. A person who has no criminal record or very minor infractions, such as a person who entered without inspection or a person who stayed after their visa expired, would be a prime candidate for this option.

The Department of Homeland Security has pledged to give preference to certain cases like those of veterans; long-time permanent residents; minors and the elderly; individuals who have been present since childhood; individualswith serious disabilities or health issues; women who are nursing or pregnant; and victims of domestic violence or other serious crimes. ICE has also stated that it would be against policy to initiate removal proceedings for witnesses, victims of crimes and plaintiffs in civil matters. This list is not exhaustive and an in-office review your individual history in the United States is required to determine if you are a good candidate for this new process.

Individuals in deportation proceedings should understand that their obligations under the immigration laws remain the same. There has been a lot of confusion and misinformation over what the August 18th announcement and the Morton Memorandum is and is not. It is important to understand that these new guidelines do not provide amnesty. The August 18th announcement has no impact on an existing voluntary departure orders and anyone under such an order who fails to timely depart will face consequences. It is also important to remember that this policy will not stop deportation proceedings. The government will continue with any deportation proceedings unless an application for prosecutorial discretion is made. Additionally, individuals should not seek to turn themselves in to immigration authorities in order to receive employment authorization documents. Such an action carries a high risk that the individual will be placed in removal proceedings and may be ordered removed. Also, please remember that these new guidelines do not give you a green card, social security card or work authorization.

As always, this is a very detailed and complex area of law. Anyone who is faced with deportation proceedings should always seek the advice of a competent immigration attorney.

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