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Immigration Law

Reflections on Prosecutorial Discretion in Immigration Context 1 Year After the Morton Memo

By Shoba Sivaprasad Wadhia 

In this Analysis, Shoba Sivaprasad Wadhia, the founder/director of Penn State's Center for Immigrants' Rights, reflects on the implementation of the famous (or infamous) immigration-agency memos on using "prosecutorial discretion" in favor of various types of noncitizens who could be removed from the United States. Were the people who said the memos went too far correct, or the people who said they should go farther? This article builds on Professor Wadhia's extensive work on prosecutorial discretion in immigration contexts.

Professor Wadhia writes:

"To mark the one-year anniversary of the memo on prosecutorial discretion and inspired by remarks made at the Immigration Law Teachers Workshop held at Hofstra School of Law earlier this month, this essay offers a personal reflection on how prosecutorial discretion has fared over the past year. Prosecutorial discretion has been part of the American legal system for more than 200 years, and in immigration law refers to whether or not to exercise the full scope of immigration law against a particular person or group of persons. A grant of prosecutorial discretion can protect a person from removal, but results in no formal immigration status. The theory of prosecutorial discretion is premised both on the limited resources the immigration agency has to pursue every individual living in the United States without authorization and the humanitarian reasons why certain individuals deserve protection.

"On June 17, 2011, ICE chief John Morton published two thought-provoking memoranda on prosecutorial discretion. The first and more comprehensive Morton Memo itself identified no fewer than nineteen factors that an immigration officer or employee should consider in deciding whether or not to exercise prosecutorial discretion. In addition, the Morton Memo identified special populations that warrant particular care and consideration, among them: veterans and members of the U.S. armed forces; long-time lawful permanent residents; minors and elderly individuals; individuals present in the United States since childhood; pregnant or nursing women; victims of domestic violence, trafficking, or other serious crimes; individuals who suffer from a serious mental or physical disability; and individuals with serious health conditions. There are many actions that exercise prosecutorial discretion, including joining in a motion to administratively close a case; cancelling or refraining from filing a Notice to Appear or NTA (charging document), and granting deferred action, among others. The Morton Memo advises ICE employees to exercise discretion in the earliest phase of enforcement and highlights the authority ICE attorneys have to review NTAs issued by a charging officials in CBP or USCIS.

"Immigration advocates praised the Morton Memo as a precious administrative tool in the wake of a congressional stalemate over any kind of immigration reform, including the DREAM Act. Critics advertised the Morton Memo as an "administrative amnesty" and a back door to a congressional legalization design." 

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RELATED LINKS: Additional information is available to subscribers at: 

Charles Gordon, et al., Immigration Law and Procedure § 72.03.

Hiroshi Motomura, The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line, 58 UCLA L. Rev. 1819 (2011).

Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law, 9 Conn. Pub. Int. L.J. 243, 244-45 (2010).

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