President Obama is on the move to provide protection to immigrants even if Congress does not act on Comprehensive Immigration Reform. Just the other day, Immigration and Customs Enforcement (ICE) Director John Morton issued two important memorandum on the use of prosecutorial discretion in immigration matters. Prosecutorial discretion applies to the agency’s authority to not enforce immigration laws against those individuals and groups that are in the process of deportation or removal proceedings. In other words a person not in deportation, at this time cannot make use of this memo.
The Morton Memo directs that ICE attorneys and employees to exercise prosecutorial discretion and desist from going after noncitizens with close family, educational, military, or other ties in the U.S. As an alternative, the memo orders them to apply their efforts for people who pose a threat to public safety or national security. What his means is that if you are illegal in the United States and have not committed a crime and have not yet been deported, you can take a deep breath because Immigration is not looking for you.
Even if someone calls the ICE hotline to tell them that a person is illegal in the United States, ICE will not go after them unless they are criminals or pose a threat to our safety.
What are the Factors for Prosecutorial Discretion
The memo lists the following 19 items for ICE to consider when applying Prosecutorial Discretion:
The Morton Memo on Prosecutorial Discretion also identifies groups of persons who deserves “particular care” when making prosecutorial decisions. Specifically, these individuals embrace:
• veterans and members of the U.S. armed forces;
• long-time lawful permanent residents;
• minors and elderly individuals;
• individuals present in the United States since childhood;
• pregnant or nursing women;
• victims of domestic violence, trafficking, or other serious crimes;
• individuals who suffer from a serious mental or physical disability; and
• individuals with serious health conditions.
Prosecutorial Discretion is Not a Green Card
First, any form of prosecutorial discretion is fragile at best, and does not grant legal status or benefit. Secondly, decisions about prosecutorial discretion are usually made on a case-by-case . If granted, the person’s case will receive a “deferred Action” (placed in a low priority) and will probably receive work authorization.
Achieving the goal of the memos will require a method by which prosecutorial discretion is considered in every case brought to ICE’s attention, even before a Notice to Appear (charging document in deportation) is issued. ICE attorneys and employees will have to be trained to follow these memos, and held responsible when they fail to act properly. Finally, ICE must invest resources in training its officers and attorneys to accept the concept of prosecutorial discretion and the critical nature of exercising it in each and every appropriate case.
Over the last few years many immigrants have left the United States after residing here for many years. Some left for economic or familial reasons. These people unfortunately will have great problems in re-entering the United States. Current laws state that if a person remained illegal for a period greater than one year (1) in the U.S.; he or she cannot obtain their permanent legal status (Green Card) until they have remained outside the U.S. for a period of 10 years.
Be Advised: Do not leave the U.S. if you plan to return without consulting an attorney.
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