On June 23, 2011, a press release was issued by the union representing Immigration and Customs Enforcement (ICE) employees stating that ICE “Union leaders around the nation issued a unanimous no confidence vote in ICE Director John Morton on behalf of ICE officers, agents and employees nationwide citing gross mismanagement within the Agency as well as efforts within ICE to create backdoor amnesty through agency policy. ICE Union leaders say that since the no confidence vote was released problems within the Agency have increased [emphasis added].” The full Union release is in my colleague Jon Feere’s blog.
Last year, I began a series entitled “ICE’s Mission Melt” that provided evidence of exactly why ICE agents are complaining at an unprecedented high volume about ICE leadership undermining not only their ability to do their job, but their job security if they try to do their job. In June 2010, I made public an unreleased memo providing detail of ICE Union employees being kept from enforcing immigration law. The memo even spoke of unsafe policies that, “prevented [ICE officers] from searching detainees housed in ICE facilities allowing weapons, drugs and other contraband into detention centers putting detainees, ICE officers and contract guards at risk.”
This time PR Newswire carried the ICE Union’s strong statements. The basis for the second no confidence vote in a year by the union was another memo by ICE director John Morton, this time on prosecutorial discretion. The ICE Union is calling this memo a, "law enforcement nightmare developed by the Administration to win votes at the expense of sound and responsible law enforcement policy."
The irony of the memo is that Morton claims to piggyback on prior INS and ICE leadership, when in fact his memo goes way beyond any other previously issued memo by leadership on the issue of “prosecutorial discretion.” In a memo dated November 7, 2007, Morton’s predecessor, Julie Myers Wood, did indeed issue a “Prosecutorial and Custody Discretion” memo. What was the wide reach of the Myers Wood memo? That when ICE is in a position to detain a nursing mother, to put the child with the mother.
In juxtaposition, Morton extends “prosecutorial discretion” to just about any human circumstance that one can think of, and then states, a tad Dr. Seuss-like, “but that is not all, oh no, that is not all…” The following list of those individuals that should be considered for “favorable prosecutorial discretion,” which means letting them stay here illegally, are:
Factors to Consider When Exercising Prosecutorial Discretion
When weighing whether an exercise of prosecutorial discretion may be warranted for a given alien, ICE officers, agents, and attorneys should consider all relevant factors, including, but not limited to
- 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 of status, or evidence of 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 of 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.
This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities. [emphasis added]
What does Morton leave for ICE agents to do? Not much. Remove or deport convicted criminals and terrorists. As shown above, everyone else is given an almost-amnesty status.
Indeed, to be fair, all ICE agents do have prosecutorial discretion, defined by a lengthy November 2000 memo issued by then-INS Commissioner Doris Meissner as, “the authority of an agency charged with enforcing a law, to decide whether to enforce, or not to enforce, the law against someone.” Doris Meissner served as the Clinton appointee to lead the former Immigration and Naturalization Service in the Justice Department from 1993-2000, longer than any other administrator in current history. Even Meissner insisted—before 9/11 when neither immigration-related national security nor criminal concerns were what they are today—that “exercising prosecutorial discretion does not lessen INS’ commitment to enforce immigration laws to the best of our ability. It is not an invitation to violate or ignore the law.”
Morton’s memo is an invitation to ignore the law. And violate it. Watch out for more administratively-issued DREAM Act-style add ons. I’m pretty sure they are headed our way. Perhaps we are now on Mission Meltdown?
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