June 24, 2011

GIVE THEM A GREEN CARD ONCE YOU DETERMINE THEY AREN'T A THREAT:

What ICE's Latest Memo on Prosecutorial Discretion Means for Future Immigration Cases (Mary Giovagnoli, 06/21/11, Huffington Post)

Last week, Director of Immigration and Customs Enforcement (ICE) John Morton reminded ICE officials of their duty and obligation to use good judgment in the prosecution of immigration cases in a new memo. In a culture where many people still believe that "enforcing the law" and "removing people" are exactly the same, Morton's new memo is likely to shake some things up. While Morton's memo doesn't change the law in any way or end controversial programs like Secure Communities, it does serve as a much-needed guide for ICE officials on how, when and why to exercise prosecutorial discretion in immigration cases.

In the memo, Morton reminds ICE officers and attorneys that they should never assume that they are powerless to affect the outcome of a case -- instead, that authority rests with individual officers and attorneys to determine whether or not the positive factors in a given case outweigh the value of prosecuting that case. In fact, ICE officials need to do this regardless of whether or not immigrants or their attorney have asked for an exercise of prosecutorial discretion. The memo reiterates the need to triage cases based on ICE priorities, emphasizing the goal of putting limited resources into cases and activities that protect the country by going after those who seek to do it harm.

While Morton started down this road last year with a memo on enforcement priorities, the circumstances of this memo are significantly different. First, rather than simply reiterate the memos of past immigration officials, this memo synthesizes what has come before, offering a more detailed discussion of the nature of prosecutorial discretion, when it can be exercised, and what kind of factors should be taken into account. Second, the list of factors themselves is a more concrete framework for guiding decision-making. Government officials often like to couch admonishments to exercise good judgment in benign phrases like "totality of the circumstances" without giving concrete examples.


Posted by at June 24, 2011 5:55 AM
  

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