Last week, the chief legal office in Immigration and Customs Enforcement, the Office of the Principal Legal Advisor, released new guidance on the implementation of the Morton memo on prosecutorial discretion, which was issued in June 2011.
The guidance consists of a memo [PDF] from Peter Vincent, the ICE Principal Legal Advisor, another memo [PDF] reiterating key aspects of the Morton memo, and a “Next Steps” memo from ICE [PDF].
In the Vincent memo, ICE announced that each regional Office of Chief Counsel (i.e. the government agency that essentially acts as the prosecutor in immigration removal proceedings), must immediately review the following three categories of cases for possible exercise of prosecutorial discretion: 1] cases in which a Notice to Appear (the initial charging document that places someone in removal proceedings) has not yet been issued; 2] all cases on the master docket; and 3] all cases where the individual in proceedings has a merits hearing scheduled within seven months of the issuance of the memorandum.
The Vincent memo mandates that each Office of Chief Counsel also set up a Standardized Operating Procedure to carry out this review:
Excerpt from Vincent ICE/OPLA memo re: standard operating procedure for prosecutorial discretion
Notice the fourth bullet and footnote 2 in the excerpt above. The memo requires that each regional Office of Chief Counsel set up an email box where individuals can send additional documentation related to requests for prosecutorial discretion. If those email boxes are actually used regularly, they could potentially become an important avenue for people in proceedings to bring attention to their requests.
Switching gears somewhat: in a blog post looking at the numbers behind DHS Secretary Napolitano’s promise that even with these reviews, the total number of deportations would not fall below 400,000, the New York Times’ Andrew Rosenthal does some basic calculations:
Homeland Security’s “criminal alien” category is full of air, to put it politely. Of the 216,698 criminal aliens deported in the past year, 1,119 were convicted of homicide and 5,848 of sexual offenses. An additional 35,927 had D.U.I.s, and 44,653 were busted for “crimes involving drugs”—which sounds awfully expansive, likely roping in foreigners busted for smoking a joint on the street (and not necessarily an American street). That adds up to about 87,000 of the more than 216,000 ”criminal” deportees. As for the rest, Homeland Security doesn’t say, and attempts to get them to meet their legal obligations to answer to the public have not had much success. But we know from many news accounts that the criminal alien category also includes low-level misdemeanors, traffic violations and other non-violent offenses that have no bearing on national security. [emphasis added]
This last point, that the drive to deport individuals with criminal convictions often strays from serious criminals, was one of the more powerful points made by last month’s Frontline: Lost in Detention broadcast on PBS. It’s very much worth watching.
