Prosecutorial Discretion: Is There A New Immigration Law?

Hanes & Bartels Jan. 13, 2012

There has been a lot of talk recently of a “new law” affecting U.S. immigration policy. The talk is the result of a letter dated August 18, 2011, sent from Homeland Security Secretary Janet Napolitano to U.S. Senate Majority Leader Harry Reid declaring that changes are coming to the government’s approach to reviewing deportation cases. This “new law” has sparked a media frenzy and a political firestorm. But is the government’s new policy a “new law”, or just more political rhetoric? More importantly, how can it be used to the benefit of those seeking immigration relief?

What the “new law” is not

First, the “new law” is not really a new law at all. Rather, the policy referenced in the letter from Secretary Napolitano reinforces the contents of two prior memoranda from Immigration and Customs Enforcement (ICE) Director John Morton. In those memoranda, from March 2010 and June 2011, Director Morton discussed the need for ICE personnel to exercise prosecutorial discretion when reviewing and prosecuting removal cases.

Morton’s memos encouraged ICE to focus its energy and resources on prosecuting high-priority cases, such as those involving convicted criminals and individuals who pose a threat to public safety. The Morton memos also discouraged ICE from expending resources on low-priority cases, such as individuals who have lived in the United States since their youth, and who have a clean criminal record.

Morton’s June 2011 memo provided 19 factors which should be considered by ICE personnel when deciding whether to prosecute a removal case. Those factors include the individual’s length of presence in the United States, the circumstances surrounding entry into the U.S., education, criminal history, military service, whether the person has a U.S. citizen or permanent resident spouse, or whether the person is the caretaker for another who is a minor, disabled, or ill.

The policy addressed in the Morton memos and the Napolitano letter also does not create new immigration categories or new grounds for admission. The policy only applies to immigrants who are facing removal proceedings.

What the “new law” is

In other words, rather than announcing a “new law”, the Morton memos and the Napolitano letter only emphasize the government’s priorities in dealing with existing removal cases, and those that will be filed in the future. However, if implemented effectively, the policy discussed in Secretary Napolitano’s letter could provide much-needed hope to those battling the deportation process.

While the Napolitano letter did not declare new law, it announced the government’s plans to implement the policies stated in the Morton memos. Specifically, the letter stated that the Department of Homeland Security (DHS) and the Department of Justice (DOJ) are jointly forming a group to conduct a case-by-case review of all pending removal cases to ensure that ICE is focusing its efforts on prosecuting only the highest priority cases, and will conduct a similar review of all new cases.

Once ICE has reviewed a case and designates it as low priority, the case will not necessarily be dismissed. Rather, the case will be “set aside”, and the individual will be eligible to apply for a work permit. It is unclear at this point, however, what long-term immigration benefits will be available to those individuals.

With approximately 300,000 removal cases pending nationwide, it remains to be seen how, when, and to what extent the new policies will be implemented. While the new policies do not yet appear to have had any significant impact on the procedures in Denver’s immigration courts, the rumor is that courts in other states have drastically changed their approach to removal cases. The scheme is certainly a work in progress, but may be a sign of hope in the struggle for immigration reform.