Prosecutorial Discretion Memo, What Does It Mean?

On June 17, 2011, John Morton, Director of Immigration and Customs Enforcement (ICE), issued two memos encouraging the expanded use of prosecutorial discretion by ICE officers, agents, and attorneys in all phases of civil immigration enforcement.

The new Morton memo is significant because it clarifies that the actions that can be used to exercise prosecutorial discretion include decisions on whether to:

- Issue or cancel a notice of detainer;

-“Reissue” or “serve” Notices to Appear (NTA); this gives an ICE officer the flexibility to allow a respondent to accrue the necessary continuous residence or continuous physical presence time for LPR and non-LPR cancellation, respectively;

-Settle or dismiss a proceeding; this appears to apply at all stages of a removal proceeding, including federal court appeals.

The memo cites as favorable factors to consider: whether the case falls within agency priorities, whether the person has graduated from a U.S. high school or is in pursuit of higher education, family relationships. Only a few negative factors are listed warranting “particular” consideration, including national security risks, serious felons, repeat offenders, those with lengthy criminal records, gang members, and “egregious” immigration violators.

The memo encourages ICE officers to proactively consider prosecutorial discretion even without being asked to do so.

Only a month after the roll-out of the new Morton memos, it is still to be seen how they will play out in the field. Hopefully they will be used to help ICE keep its focus on its stated goal of deporting serious criminal offenders and dangers to the community while spending less time chasing the deportations of DREAM Act eligible and other non-priority cases.

For the Morton Memo, click here.

For an excellent detailed advisory by Mary Kenney for American Immigration Council, click here.

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The "A" Word

After previous failures to get any traction on comprehensive immigration reform or the DREAM Act, President Obama has again ramped up his efforts to call for reform. The outlines of the President's proposed plan are nothing new. He emphasized the need to pore further resources into securing the borders and prosecuting business owners who willfully employ undocumented workers. At the same time, those illegally in the country could begin a legalization process after they (1) admit to having broken the law, (2) pay taxes and a fine, (3) learn English, and (4) undergo background checks to ensure that they have no serious criminal history.

For opponents of reform, the broad outline of the plan will be immediately deemed as unacceptable because it amounts to an amnesty. With so much of the political debate centered on whether or not a given plan is an amnesty, it is probably worth looking at what the word amnesty means.

According to dictionary.com, the definition of "amnesty" is (1) a general pardon for offenses, especially political offenses, against a government, often granted before any trial or conviction; (2) an act of forgiveness for past offenses, especially to a class of persons as a whole; or (3) a forgetting or overlooking of any past offense.

The relevant definition word “pardon” is defined as (1) a release from the penalty of an offense; a remission of penalty, as by a governor; or (2) forgiveness of a serious offense or offender.

Would requiring offenders to (1) admit to having broken the law, (2) pay taxes and a fine, (3) learn English, and (4) undergo background checks to ensure no serious criminal history before they could start a legalization process really be an amnesty? Such requirements seem more akin a mass guilty plea and sanction (a presumably substantial fine and English classes) than a "release from the penalty of an offense" or a "forgetting or overlooking of any past offense."

When a person pleads guilty to DUI, he admits to having broken the law and then is required to pay court costs and fines and often agrees to take classes. DUI and other criminal offenders are not seen as having been granted amnesty.

A reform program should be envisioned as a mass guilty plea with serious sanctions attached. It would be to American society's benefit that fines will be paid, those who do not know English will be required to learn it, and 10 or so million people will no longer be living in the shadows.

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Immigrant Father of U.S. Marine Faces Deportation

The Washington Post published a story today on the possible deportation of an illegal immigrant father of a Marine in Kentucky. Juan Andres, a citizen of Guatemala, came to the U.S. as a teenager; he is now 41. Mr. Andres has five U.S. Citizen children, one of which is a Marine awaiting deployment to Afghanistan.

On December 9th of this year Mr. Andres was arrested after accompanying a friend to an immigration office in Louisville, Kentucky to act as a translator. An official in the office suspected Mr. Andres was not in legal status and he was arrested.

According to the immigration attorney of Mr. Andres, they are asking that his case go before an immigration judge. If he is granted a hearing, Mr. Andres will be seeking ten year cancellation of removal, in an attempt to become a permanent resident. Mr. Andres is currently in immigration custody awaiting a hearing.

To read the full story, please click http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123002115.html

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Customs and Border Patrol Commissioner Calls for Comprehensive Immigration Reform

In remarks addressed to the Migration Policy Institute, Customs and Border Patrol ("CBP") Commissioner Alan Bersin detailed recent accomplishments and future goals of the agency's enforcement efforts at the border. Refreshingly, he also indicated an understanding that immigration at root is a matter of labor markets and challenged the country to tackle the tough issues in order to enact comprehensive immigration reform. Commissioner Bersin identified three key elements that must be included for successful reform. First, he indicated that the Federal government must continue to take the responsibility to secure the borders. Second, a reform needs to implement responsibility and accountability from employers. Finally, he indicated that those currently here without status must be required to register, admit that they are present in violation of the law, pay a fine and back-taxes, and learn English to get started on the path to citizenship. Commissioner Bersin aptly concluded his remarks with a challenge to Congress to "move past the false debates and start focusing on the long term needs of our nation."

Read the CBP Commissioner's remarks in their entirety here.

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Immigration Reform A Central Issue in 2010 Election Debates

Several states, including Colorado, have both Senate and Gubernatorial elections this November. Although always a controversial issue, immigration policy is again a point of disagreement between political candidates, a fact that was showcased at the recent debates.

On Saturday, candidates for Colorado governor debated for the first time. Democratic candidate John Hickenlooper, Republican Dan Maes, and American Constitution Party candidate Tom Tancredo met to discuss their opinions on everything from charitable giving, to decreasing the size of government, to immigration. Tancredo accused Hickenlooper, the current Denver Mayor, of running a “sanctuary city.” He further claimed that because Hickenlooper had encouraged Denver to become a “sanctuary city” he had made it a “magnet” for undocumented immigrants. Hickenlooper firmly denied the labeling of Denver as a “sanctuary city.” Denver CBS news quotes Hickenlooper as responding, "The bottom line, it goes to every large city, every small city in this country, or almost everyone, we have the same challenges. There is not space in the prisons for everyone the Congressman wants us to put in jail." None of the candidates presented a clear plan for how they would address the issue of undocumented immigrants currently living in the state.

Immigration reform was also an issue in last week’s debate between Colorado’s Senate candidates Michael Bennet and Ken Buck. Bennet, the Democratic incumbent, is a co-sponsor of a federal bill to allow in-state tuition for some undocumented college students who are in the country illegally but came to the country as small children. Buck said he opposed extending in-state tuition without asking undocumented students to agree to military or community service as a way to earn their education.

See more coverage of the Colorado debates:
http://cbs4denver.com/campaign2010/buck.bennet.debate.2.1920033.html
http://cbs4denver.com/news/governors.debate.maes.2.1893985.html

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