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If you have heard of the ‘Morton Memo’, you have probably heard it as something to be happy about. Immigration and Customs Enforcement Director John Morton has urged his agency to utilize “prosecutorial discretion”, meaning that it may not pursue deportations as vigorously as it has. Unfortunately, this memo isn’t worth the paper it’s written on. There aren’t any guarantees that undocumented youth are now safe from deportation–it shouldn’t be thought of as anything remotely reassuring. In fact, President Obama just deported asylum-seeker Andy Mathe the day after personally finding out about the case.

Here’s a brief overview of this much talked about memo and what it means for you.

The Memo, ICE and Obama

On June 17, John Morton put into writing what President Obama and DHS Secretary Janet Napolitano have been saying for months: that DREAM Act-eligible youth are not a deportation priority. Despite that, as you’ve seen from the continued need for petitions, undocumented youth are still winding up in proceedings (and deported, as mentioned above).

Overall, ICE has been taking heat for two of its programs under the ICE ACCESS umbrella of law enforcement partnerships, 287(g) and Secure Communities, making the Morton Memo appear to be a concession to satisfy critics who have rightly accused ICE of rounding up immigrants without respect their civil rights and civil liberties or the due process of law, let alone the nuances of their cases. As the National Day Laborers Organizing Network pointed out, President Obama has now deported more immigrants than President Eisenhower under Operation Wetback in the early 1950s.

A Brief History of Prosecutorial Discretion

The Morton Memo is another development in a history of prosecutorial discretion that goes back to the Clinton Administration and changes to immigration law in the past two decades.

Long before the Morton Memo, a previous memorandum on prosecutorial discretion written by INS Commissioner Doris Meissner in 2000 established significant authority for prosecutorial discretion in immigration cases. After Congress amended the Immigration and Nationality Act in 1996, judges in immigration court lost a lot of their ability to use, well, judgment on individual cases. INS was forced to make better decisions about where it allocated its resources now that immigration judges would no longer be able to grant as much relief from removal as they once had. Meissner’s memo places a greater emphasis on “substantial Federal interest,” meaning that prosecutorial discretion permits ICE not to pursue cases–even “legally sufficient” ones–which don’t benefit the federal government in any way. Meissner’s memo also lists cases in which discretion should be used and categories of people that should “trigger” favorable discretion. Some of those triggers should sound familiar: “Juveniles;” “Aliens with lengthy presence in United States (i.e., 10 years or more); and “aliens present in the United States since childhood.” The memo also notes that “community attention” is a factor to consider when discretion might be possible.

The Morton Memo and today’s politics

In 2011, what does the Morton memo say? Nothing too different from the previous policy directive. It doesn’t say anything about the DREAM Act. However, many of the factors ICE should use to consider backing off would apply to undocumented youth:

the circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
[...]
the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the United States;
[...]
whether the person, or the person’s immediate relative,has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
[...]
the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
[...]
the person’s ties and contributions to the community, including family relationships;

But as previously noted, there are no guarantees that undocumented youth will not be deported. In fact, Meissner’s memo was far more rooted in looking at the merits of individual cases and the radical idea that law enforcement officials ought to do more than round people up and ship people out. The Morton Memo is based more in budgetary concerns rather than humanitarian ones.

Senator Jeff Sessions of Alabama and several other senators have claimed that the Morton Memo was an attempt to “grant administrative amnesty“, but this is the same Jeff Sessions that lied on the Senate floor when he said that undocumented immigrants could already join the military during the December DREAM Act vote. There’s no reason to take him seriously on this. As a member of the Subcommittee on Immigration, Border Security and Citizenship, Sessions is supposed to be an expert on immigration, so the only explanations are that he’s a liar or that he is completely undeserving of his position.

The history of prosecutorial discretion and its present reiteration reveal the root of the problem: a system that is too narrowly focused on deportations. Such a narrow focus is ill-fit for the present reality, and one that we wouldn’t tolerate from any other law enforcement agency. Police have to do more than make arrests–immigration officers have to do more than raids and deportations. Prosecutorial discretion isn’t a solution, or even really a benefit. One way or another, it shouldn’t be thought of as a pro-migrant accomplishment by the Obama Administration.

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