Sharma Crawford

USICE Issues Guidance on Which Cases They Will Exercise Discretion

When President Obama was elected, many thought he would use the opportunity of a democratic majority to address the issue of immigration reform. This did not happen. With deportation cases at an all-time high and migration at an all-time low, the need for a comprehensive immigration law has never been clearer. For 2011, the Kansas City, Missouri Immigration Court, which handles cases from all over Kansas (including Wichita, Salina, and Western Kansas) and Missouri (including St. Louis), has a current case-load of 3,448. The average time a case remains pending is approximately 300 days.

Perhaps in a response to the number of cases and the lack of immigration reform on the horizon, recently Director of Immigration and Customs Enforcement (ICE), John Morton issued a memorandum, known as the Morton Memo on Prosecutorial Discretion, directing immigration agents to exercise discretion in removing people. In so doing, Director Morton reminded ICE the need to use good judgment in evaluating whether removal proceedings should be initiated and whether the case meets the priority guidelines set out by the Agency.

Morton Memo sets out a non-exhaustive list of opportunities under which prosecutorial discretion is appropriate. These circumstances include:

  • deciding to issue or cancel a notice of detainer;
  • deciding to issue, reissue, serve, file, or cancel a Notice to Appear(NTA);
  • focusing enforcement resources on particular administrative violations or conduct;
  • whom to stop, question, or arrest for an administrative violation;
  • deciding whom to detain or to release on bond, supervision, personal recognizance, or other condition;
  • seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court;
  • settling or dismissing a proceeding;
  • granting deferred action, granting parole, or staying a final order of removal;
  • agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal;
  • pursuing an appeal;
  • executing a removal order; and
  • responding to or joining in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit

The Memo goes on to provide an extensive, though not exclusive list of considerations to be examined in deciding if the use of prosecutorial discretion. These considerations include:

  • the agency’s civil immigration enforcement priorities;
  • the person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
  • 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 immigration history, including any prior removal, outstanding order of removal, prior denial o f status, or evidence o f fraud;
  • whether the person poses a national security or public safety concern;
  • the person’s ties and contributions to the community, including family relationships;
  • the person’s ties to the home country and condition in the country;
  • the person’s age, with particular consideration given to minors and the elderly;
  • whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  • whether the person is the primary caretaker o f a person with a mental or physical disability, minor, or seriously ill relative;
  • whether the person or the person’s spouse is pregnant or nursing;
  • whether the person or the person’s spouse suffers from severe mental or physical illness;
  • whether the person’s nationality renders removal unlikely;
  • whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
  • whether the person is likely to be granted temporary or permanent status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
  • whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

These criterias signal a shift in the overzealous enforcement efforts of the past and while it does not go so far as to effectively halt removal of Dream Act kids or deactivate the Secure Communities program, it does show some progress in common sense immigration enforcement. Although a complete and effective overhaul remains elusive and it is unlikely that such change will come before the next election, this is a good start. The question, however, that remains unanswered is exactly how long it will take to implement the directives set out in the Morton Memo. Read the full memo on the Sharma-Crawford Facebook page.

Sharma-Crawford, Attorneys at Law is a Kansas City, Missouri, firm deeply experienced in the complexities of immigration litigation. Whether you are facing criminal or civil litigation in state, federal or immigration court, in Kansas or Missouri – the caring professionals at Sharma-Crawford can help you navigate through the complex legal system. For more information, please call (913) 385-9821 or visit The choice of a lawyer is an important decision and should not be based solely on advertisements. The information contained in this article is general information and should not be considered legal counsel.

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