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A New Weapon in the Arsenal for Deportation Defense
The Morton Memo


prosecutorial discretion  deportation defensePresident 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 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 conditions 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 legal 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.

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.


Articles related to this topic

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  • WAIVERS OF DEPORTATION - Attorney Moses Apsan, 30 years Experience in Deportation Defense
  • Procedures Followed by ICE for The Arrest and Detention of Non-Criminal Aliens
  • How to Expedite I-601 Waiver of Grounds of Inadmissibility
  • Ice Online Immigration Detainee Locator System
  • ICE Memorandum: apprehension, mandatory detention, and removal of aliens
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    Moses Apsan and his staff, based in New York City and Newark, NJ provide exceptional legal services throughout the world, in all aspects of immigration to the United States, including non-immigrant (temporary visas), immigrant visa (Green Card) and deportation defense. In addition Mr. Apsan, has been practicing Bankruptcy law and Divorce laws for over 30 years, He was the President of the Federal Bar Association, New Jersey Chapter (1997-2002). He speaks Portuguese and Spanish..
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