More Morton Memos Mean More Mystery

Sunday, June 19th, 2011
By: Jonathan MontagJ.D.

Hurray! Another memo from ICE on Prosecutorial Discretion. Another Morton Memo by John Morton, the Director of ICE! The first big change in the memo – Mr. Morton identifies himself as ICE Director instead of an assistant secretary in the Department of Homeland Security. As they would say on the Island, Mazal Tov on your new stationery.

A million journalists are filing stories going through the details of the new memo, the big news of which is that ICE may empower its local attorneys with more authority to choose who to prosecute for removal in immigration court. The memo lists a myriad of factors to consider in exercising the discretion.

This new memo comes in the context of the annual conference of the American Immigration Lawyers Association (AILA) in San Diego, which was just held, July 15-18. Also at the conference were announcements to try to make reforms to Secure Communities – the program where ICE takes into its custody non-citizens in jails after they are released and places them in proceedings if they do not belong in the United States. A criticism of this system, among many others, is that it casts a very broad net and instead of catching dangerous criminals and fugitives, catches people arrested for minor traffic offenses or arrested but not prosecuted for anything.

One wonders, why all this big news during the conference. One reason is likely that Mr. Morton can make these announcements to a sympathetic audience that will applaud him for it. Certainly, if he makes this announcement on Fox News or before the Republican Caucus (or before his own agents), the changes would be met with consternation as the policy essentially means that lots of illegal fish caught in ICE’s nets will be thrown back into the sea. For those that see all people here without status as law breakers who should be deported, this is not good news.

These announcements make sense not only in a humanitarian context, but in a law enforcement administration efficiency context. Other information provided at the AILA conference bears this out. The Director of the Executive Office for Immigration Review, Mr. Juan Osuna, reported that funding difficulties mean that the hiring of new immigration judges, necessary to is on hold while. Despite previous pronouncements of ICE about prosecution priorities that were made in part because of ICE’s awareness of the immigration court bottleneck, ICE, as well as USCIS and CBP, are putting more and more people in proceedings. Backlogs are thus building and the pressures on the immigration courts and the Board of Immigration Appeals growing and growing. Mr. Osuna indicated that EOIR foresaw no amelioration in 2012, as while President Obama’s funding recommendations for EOIR could solve backlog problems, in reality EOIR is not going to see this money.

Thus, unless ICE does something about seriously reducing the number of people it places in proceedings, the immigration court and BIA backlogs will grow and grow. Speaking with other EOIR notables, I learned that some immigration courts are now nominally backlogged a year and a half – meaning aliens caught by ICE and sent to court for orders of removal, will not see an immigration judge for a year and a half. This is not news to immigration practitioners. What was news to me was this year and a half backlog is a fiction. Immigration court computer systems only allows for scheduling cases out that far. So, on the date a year and a half from now, not one case is scheduled, but rather three are, because cases have to be scheduled somewhere. However, two will not be heard and will be re-scheduled when the court date is reached in a year and a half and put out another year and a half. Thus, in reality, the backlogs are much, much longer than a year and a half. Without a huge expansion in the size of the immigration court system, putting more and more people into the system is pointless because it will be years before they get out of it. Further, with the expansion of detention of aliens, long periods of “civil” detention are costing us all a fortune. The current system puts America in the position of incarcerating 35,000 people a day who are not being punished for crimes and are not prisoners of war, which is a lot of people to lock up even if locking up people who are not being punished for a crime. Even if this does not offend your sensibilities, it offends the national pocketbook.

Despite the palpable need to either stop putting so many people into proceedings or to dramatically expand the immigration court system, some ICE officials at the conference saw no problems and think ICE is doing a fine job. They see no problems that more law enforcement cannot solve. One official, Mr. Peter S. Vincent, the Principal Legal Advisor for ICE, when a participant in a conference session told him that in his practice he saw no evidence that ICE was exercising prosecutorial discretion in an expanded manner notwithstanding earlier Morton memos, promptly (figuratively) drilled the participant a new a-hole. After the audience responded unfavorably to the verbal attack, Mr. Vincent denied that was what he was doing, but the session was taped. Inasmuch as I have not seen any expansion of prosecutorial discretion in the past two years either, Mr. Vincent may have to come back to San Diego and drill me one too – figuratively, I hope. If Mr. Vincent is going to be the man responsible for implementing the newest prosecutorial discretion guidelines that give his attorney underlings the power to exercise discretion, judging from his attitude at the conference, I expect that is the first place Mr. Morton is going to see resistance is from the chief of the attorneys. ICE officers are on record as opposing reforms that mandate releasing people who have no legal status in the United States. Thus, when it comes to a new era of prosecutorial discretion and more discrimination as to whom to place in removal proceedings, color me skeptical. When it comes to anticipating shorter waits to see the immigration judge, color me doubly skeptical. Posted June 19, 2011.



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