Morton Memo: Valid Reprieve from Removal or Hollow Policy?

To date, fewer than 3,000 immigration court cases nationwide have been closed under the Morton Memo. Issued by Immigration and Customs Enforcement Director (ICE) John Morton in June 2011, the Memo reminded ICE officers to focus on “high priority “ removal cases to reduce the backlog in Immigration Courts.

ICE is directed to spend most of its resources on serious felons, repeat offenders, known gang members, those who pose a danger to national security, and those with an egregious record of immigration violations. ICE is also instructed to set aside, on a case-by-case basis, low priority cases including members of the U.S. armed forces, long-time permanent residents, minors and elderly persons, victims of crime, and those with serious mental or physical disabilities and illnesses. Known as “prosecutorial discretion,” this process has led to mixed results over the past year.

 Recent Data Shows Little Change in Backlog

Whether the Morton Memo is a valid reprieve from removal or a hollow policy remains unclear. In March 2012, ICE reported to Congress that 142,212 cases of non-detained immigrants in removal proceedings have been reviewed. A total of 13,175 cases (9%) were identified as candidates for prosecutorial discretion pending background check results. ICE also reported that 23,259 cases of detained immigrants have been reviewed. A total of 15 cases (less than 1%) were identified as candidates for prosecutorial discretion pending background check results.

While prosecutorial discretion is a nationwide policy, ICE conducted two pilot programs in the Baltimore and Denver Immigration Courts between December 4, 2011 and January 13, 2012. Nearly all the cases pending during that period since September 2011 were reviewed for potential closure. In the Baltimore Immigration Court, only 230 (4.4%) of the 5,256 pending cases were closed as of March 2012.  In the Denver Immigration Court, only 186 (2.5%) of the 7,579 pending cases (excluding detained individuals) were closed as of March 2012.

In April 2012, Transactional Records Access Clearinghouse (TRAC) reported that only 2,609 (less than 1%) of the 298,173 cases pending before the Immigration Courts since September 2011 have been dismissed or put on hold. This pace of closures is not enough to stop the growth in the Immigration Courts’ backlogs. At the end of March 2012, the backlog actually rose to 305,556 cases. While the numbers are disappointing, the percentage of cases closed through prosecutorial discretion could rise as more cases are reviewed.

 Mixed Results and Limited Benefits

Implementation of the Morton Memo has not been consistent. The manner in which the policy is applied tends to vary across the ICE district offices. Further, the same office may agree to closure in one case but not in another case with similar facts. In one example, the ICE attorneys agreed to close a case of a minor who was present in the U.S. for a long time, despite entering illegally. The minor had no criminal history and prosecutorial discretion was his only reprieve from removal. The same ICE attorneys, however, refused to close a case with almost identical facts, despite the added factor of a U.S. Citizen or Lawful Permanent Resident family member.

Uncertainty also comes from the fact that ICE rarely provides feedback when it denies a request. The response usually comes in a brief letter from the Office of Chief Counsel, which simply states that the government reviewed the request but is denying it, without providing the reasons why.

A favorable exercise of prosecutorial discretion also offers limited benefits. The Morton Memo does not create a new pathway to lawful permanent resident status. If a low priority case is closed, it only allows the person to stay temporarily in the United States. Many who are granted this relief still cannot work legally in the United States.  Prosecutorial discretion also only applies to persons who are already in removal proceedings before the Immigration Courts. There is no guarantee that undocumented immigrants who turn themselves into DHS will be considered “low priority” cases. Instead, they could be arrested, detained, or removed from the U.S.

Requesting a favorable exercise of prosecutorial discretion is really a last resort. It is worth asking for in low-priority cases, especially when the facts are compelling and there are no other forms of relief. In May 2012, a 47-year-old Ecuadorian domestic worker, Sara Martinez, was granted prosecutorial discretion in New York, after a long battle with ICE. Ms. Martinez entered the U.S. in 2005 and overstayed her 6-month visa because the father of her daughter was in the country. It took three requests to ICE officials in Buffalo, New York, and the help of U.S. Representative Nydia Velazquez, D-N.Y., a pro-bono attorney, and the nonprofit New York Immigration Coalition for Ms. Martinez to obtain the relief.

Conclusion

The long-term effects of the Morton Memo are yet to be been. While cases have been closed as a result of the Memo, the Immigration Courts still suffer from tremendous backlog. And due to the inconsistency in its application, the lack of clear guidance from the U.S. government, and limited benefits, the Morton Memo is a valid reprieve from removal for some and a hollow policy for others.

Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.

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