The Lasting Legacy of John T. Morton

Background

The majority of this was written as background for a journalist friend in July 2019, based on a piece from the Federation for American Immigration Reform (FAIR), The Morton Memos: Giving Illegal Aliens Administrative Amnesty. There are some obvious similarities, but our intended audiences were different, and mine was written not just so my friend could critically inform readers about the lingering limitations of Immigration and Customs Enforcement’s (ICE) enforcement priorities, or rather lack thereof that Morton established, but was also intended to push the Trump administration to chart its own way forward in keeping with 2016 campaign promises which then-candidate Donald Trump ran on.

Anyway, my friend never used it, so while some of the references are dated, now that I’m blogging, I’m going to…

Introduction

Unless you’re a political wonk or your work involves immigration, you might not be familiar with John T. Morton. Morton was the Director of Immigration and Customs Enforcement (ICE) from 2009 through 2013. In several ways, he shares similarities with current Acting DHS Secretary Kevin McAleenan, and the two men worked closely together in their respective positions during the Obama Administration. Both were relatively young for the positions within the Department they held, were attorneys rather than career ‘lawmen’ and left their mark on immigration enforcement by the Federal Government.

Not simply ripe for abuse, rotten on the vine

Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture,” dated December 8, 2009. (Directive Number 11002.1)

While not a memorandum in the same sense as ones listed later, the document nevertheless “provides guidance to Detention and Removal Operations (DRO) [Ed. now known as Enforcement and Removal Operations (ERO)] Field Office personnel for exercising their discretion to consider patrol of arriving aliens processed under the expedited removal provisions of section 235 of the Immigration and Nationality Act (INA) [8 U.S.C. § 1225] who have been found to have a “credible fear” of persecution or torture by U.S. Citizenship and Immigration Services (USCIS) or an immigration judge of the Executive Office for Immigration Review. On a positive note, the memo states that the “directive does not apply to aliens in [ERO] custody under INA § 236 [8 U.S.C. § 1226].

Arriving aliens who are described as applying for admission into the U.S. at a Port of Entry, or an alien seeking transit through the U.S. or interdicted in international or U.S. waters and brought into the country though interestingly enough INA § 235 doesn’t limit ‘arrival’ to Ports of Entry or interdiction on the high seas, but I digress. “Arriving aliens who establish a credible fear of persecution or torture are to be detained for further consideration of the application for asylum [per] INA § 235(b)(l)(B)(ii). Such aliens, however, may be paroled on a case-by-case basis for ‘urgent humanitarian reasons’ or ‘significant public benefit,’ provided the aliens present neither a security risk nor a risk of absconding” which data maintained by the Executive Office for Immigration Review (EOIR) shows is not only a distinct risk, but happens often and isn’t limited to would-be asylum seekers.

8 C.F.R. § 235.3(c) allows for aliens referred for removal proceedings, pursuant to INA§ 240 [8 U.S.C. § 1229a including those who have a fear of persecution or torture deemed credible by an Asylum Officer to be paroled or released from Government custody in immigration-speak under five categories defined by 8 CFR § 212.5(b): “(1) aliens who have serious medical conditions, where continued detention would not be appropriate; (2) women who have been medically certified as pregnant; (3) certain juveniles; (4) aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States; and (5) aliens whose continued detention is not in the public interest.”

The memo goes on to point out that 8 C.F.R. § 235.3(b)(4)(ii) “arriving aliens who have not been determined to have a credible fear will not be paroled unless [it] is necessary in light of a ‘medical emergency or is necessary for a legitimate law enforcement objective’” but almost brags that “the term ‘public interest’ is open to considerable interpretation.

When simply being here unlawfully no longer matters

Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens,” dated March 02, 2011. (Policy Number 10072.1) 

This memorandum established “the civil immigration enforcement priorities of [ICE] as they relate to the apprehension, detention, and removal of aliens,” applied to all programs and intended those priorities to shape future “enforcement activity, detention decisions, budget requests and execution, and strategic planning.” 

Specifically, the document formalized ‘Priorities’ of aliens for removal and amended the offense levels defined by the Security Communities Program and while it was claimed doing so would allow ICE to better utilize its limited resources on criminal aliens classified as Priority 1, it flips on its head the idea that per 8 U.S.C. § 1227(a)(1)(B), “[a]ny alien who is present in the [U.S.] in violation of this chapter or any other law … is deportable” and whereby at Priority 2, and 3 respectively, finding “Recent illegal entrants” and “Aliens who are fugitives or otherwise obstruct immigration controls” are more important than those encountered while searching for prioritized aliens.

When everyone’s a victim, the term starts losing its meaning

Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs,” dated June 17, 2011. (Policy Number 10076.1)

This memorandum formalized agency policy regarding the exercise of prosecutorial discretion in removal cases where the alien had been the victim of or witnesses to a crime, including domestic violence (building on prior guidance on the handling of cases involving T and U visas and the exercise of prosecutorial discretion), and “individuals involved in non-frivolous efforts related to the protection of their civil rights and liberties” and ICE officers, special agents, and attorneys are told they “should exercise all appropriate prosecutorial discretion to minimize any effect that immigration enforcement may have on the willingness and ability of victims, witnesses, and plaintiffs to call the police and pursue justice.”

While the memo makes a valid argument regarding victims of domestic violence, the idea victims of human trafficking, or other serious crimes are likely to be booked by a participant of the Safe Communities program seems tenuous at best, but the logic train completely jumps the tracks when it’s suggested “individuals” who lack employment authorization “engaging in a protected activity related to civil or other rights,” e.g., union organizing or complaining to authorities about employment” should be protected from civil arrest or benefit from prosecutorial discretion while engaging in unlawful employment.

Priorities are an oppressive tool of the ambitious

Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” dated June 17, 2011. (Policy Number 10075.1)

“This memorandum,” the second Director Morton signed that day for reasons which years later still escape me, “builds on several existing [ones] related to prosecutorial discretion” most published in the years between the establishment of ICE with passage of the Homeland Security Act of 2002, and Morton’s tenure as Director but one, a “Legal Opinion Regarding Service Exercise of ProsecutoriaI Discretion” was published by the General Counsel of the legacy Immigration and Naturalization Service, Sam Bernsen in July 1976. It also emphasizes the agency’s “enforcement priorities” as well as establishing “which agency employees may exercise prosecutorial discretion and what factors should be considered.”

While the concept of prosecutoriaI discretion if fundamentally sound as an exercise of power delegated by Congress, in addition to the memo avoiding use of the word “alien,” there are several of the “Factors [ICE employees were instructed] to Consider When Exercising [it]” which should cause readers pause.

  • “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 has a U.S. citizen or permanent resident spouse, child, or parent;”
  • “the person’s age, with particular consideration given to minors [];” and
  • “whether the person [] is pregnant”


Whether or not one agrees with the wording and intent of the Fourteenth Amendment or is willing to compromise based upon the 1898 Supreme Court opinion in United States v. Wong Ark Kim that birthright citizenship is limited to the children of aliens with “permanent domicil [sic] and residence in the United States,” why should an alien who is otherwise removable be given special dispensation because she’s on the verge of dropping an anchor baby?

There’s a lot to dislike about this memo, but what’s not explicitly referenced is what makes it most egregious. The document concludes “[t]hese guidelines and priorities are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter” so what is so offensive about it you’re no doubt asking yourself? It strongly favors prosecutorial discretion for aliens brought to the U.S. as children and was signed a year—almost to the day—before the memorandum establishing “Exercis[e] of  Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” which created the Deferred Action for Childhood Arrivals (DACA) program.

Intentionally conflating refuge with lawfulness and the modern sanctuary movement

Enforcement Actions at or Focused on Sensitive Locations,” dated October 24, 2011. (Policy Number 10029.2) 

This memorandum revised and superseded ICE’s prior policy regarding certain enforcement actions by its officers and agents “at or focused on sensitive locations [intended] to ensure [] enforcement actions do not occur at nor are focused on sensitive locations such as schools and churches unless (a) exigent circumstances exist (b) other law enforcement actions have led officers to a sensitive location as described in the ‘Exceptions to the General Rule’ section of th[e] policy memorandum, or (c) prior approval is obtained.”

“Enforcement actions covered by th[e] policy are (1) arrests; (2) interviews; (3) searches; and (4) for purposes of immigration enforcement only surveillance,” but didn’t cover such actions as obtaining records, documents and similar materials from officials or employees, providing notice to officials or employees, serving subpoenas, engaging in Student and Exchange Visitor Program (SEVP) compliance and certification visits. or participating in official functions or community meetings.

The non-exclusive list of sensitive locations include[s] but [isn’t] limited to:

  • schools (including pre-schools, primary schools, secondary schools, post-secondary schools up to and including colleges and universities, and other institutions of learning such as vocational or trade schools); 
  • hospitals;
  • churches, synagogues, mosques or other institutions of worship, such as buildings rented for the purpose of religious services; 
  • the site of a funeral, wedding, or other public religious ceremony; and 
  • a site during the occurrence of a public demonstration, such as a march, rally or parade.


The memo rather than striking a balance between the need to for ICE to conduct law enforcement-related activities and making a good faith effort not to do so at “sensitive locations” the memo instead emboldened the resistance in the form of more sanctuaries and later, spurred the ‘#AbolishICE’ movement.

The Devil’s in the details

If the Devil wrote a policy document, I’m convinced it would be then-DHS Secretary Janet Napolitano’s “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”, which readers would better recognize by its short name, the ‘DACA memo’.

Secretary Napolitano’s Memorandum Concerning the Exercise of Prosecutorial Discretion for Certain Removable Individuals Who Entered the United States as a Child,” dated June 15, 2012.

This memo is exactly what it sounds like; instructions on how to implement DACA during the course of interior enforcement operations, yet ironically, ends with a disclaimer that:

“[T]here is no right to the favorable exercise of discretion by the agency, nothing in this memorandum should be construed to prohibit the apprehension, detention, or removal of any alien unlawfully in the [U.S.] or to limit the legal authority of DHS or any of its personnel to enforce federal immigration law. Similarly, this memorandum, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.”

But of course, the DACA program has in the seven years since it was created in violation of the Administrative Procedure Act; the same law the various Federal courts have cited as the reason the Trump Administration can’t end it, have done pretty much everything which was declaimed for almost 800,000 illegal aliens few of whom were actually children. 

ICE agents and officers were put on notice “[e]ffective immediately,” they were [] to exercise prosecutorial discretion in a manner [which] align[ed] with the Secretary’s memorandum [] with respect to individua ls who meet the criteria outlined [] … in order to prevent these low priority individuals from being placed into removal proceedings or removed from the [country]” which to me sounds like the opposite of allowing individual employees to exercise their own prosecutorial discretion regarding illegal aliens they encounter. Further, Director Morton states “ICE has also been directed to apply the Secretary’s [DACA] policy, on a case by case basis, to individuals whose cases are pending before the Executive Office for Immigration Review [who] can demonstrate that they meet the [program] criteria.

Devaluing, then discouraging use of a valuable tool

Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems,” dated December 21, 2012.

Guidance as the title implies is provided by this memo on the use of ICE detainers in the federal, state, local, and tribal criminal justice systems” and applies to all uses of detainers regardless of whether the contemplated use involves the Criminal Alien Program, Secure Communities, a 287(g) agreement, or any other enforcement effort. “Consistent with ICE’s civil enforcement priorities and absent extraordinary circumstances,” agents and officers were instructed to only issue a detainer when (1) they have reason to believe the individual is an alien subject to removal from the United States and (2) one or more of the following conditions apply:

  • the individual has a prior felony conviction or has been charged with a felony offense;
  • the individual has three or more prior misdemeanor convictions;
  • the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves—
    • violence, threats, or assault; 
    • sexual abuse or exploitation;
    • driving under the influence of alcohol or a controlled substance;
    • unlawful flight from the scene of an accident;
    • unlawful possession or use of a firearm or other deadly weapon;
    • the distribution or trafficking of a controlled substance; or 
    • other significant threat to public safety;
  • the individual has been convicted of illegal entry pursuant to 8 U.S.C. § 1325;
  • the individual has illegally re-entered the country after a previous removal or return;
  • the individual has an outstanding order of removal;
  • the individual has been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or
  • the individual otherwise poses a significant risk to national security, border security, or public safety.


Though the document has the boilerplate disclaimer about the guidance not creating or conferring any legal right or benefit to any person, read: alien or party; it has an entire paragraph devoted to prosecutorial discretion which states “[the] guidance identifies those removable aliens … for whom a detainer may be considered” but adds, “[i]t does not require [one] in each case, and all ICE officers, agents, and attorneys should continue to evaluate the merits of each case based on the June 11 memorandum entitled Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens and other applicable policies.”

One need not read summaries of each individual memorandum to imagine the harm their existence causes independently or as a collective body of work. Directive Number 11002.1, on paroling aliens found to have credible fear was cited by the U.S. District Court for the District of Columbia in the 2018 case Damus v. Nielsen, a class-action lawsuit challenging ICE’s policy of detaining asylum seekers without considering their suitability for release on parole and while not expressly mentioned, the agency’s bond practices were again scrutinized in Padilla, et al. v. Immigration and Customs Enforcement, et al. resulting in a preliminary injunction on April 5, 2019 and a modified one this past Tuesday.

ICE points out that Directive 10075.1 Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens was “rescinded and superseded” by then-Secretary Jeh Johnson’s memorandum Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants on November 20, 2014 (as well as 10072.1, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens) but from the perspective of enforcement, the document makes no fundamental changes and states very matter-of-factly:

“DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion, DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities. DHS’s enforcement priorities are, have been, and will continue to be national security, border security, and public safety. DHS personnel are directed to prioritize the use of enforcement personnel , detention space, and removal assets accordingly.”

With the issuance of Executive Order 13768, Enhancing Public Safety in the Interior of the United States on January 25, 2017, then-Secretary John Kelly issued Enforcement of Immigration Laws to Serve the National Interest on February 20, 2017, which while well intentioned, was ripe with contradictions. On one hand, it “immediately rescind[s]” all existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal”, but that exempts “the June 15, 2012, memorandum entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children [DACA],’ and the November 20, 2014 memorandum entitled ‘Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents,’ [] to the extent of [] conflict-including, but not limited to, the November 20, 2014, memoranda entitled ‘Policies for the Apprehension, Detention and Removal of Undocumented Immigrants,’ and ‘Secure Communities’” The reference to the document, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents” is especially interesting since its purpose was creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program better known by its acronym, DAPA since an evenly divided Supreme Court on June 23, 2016 declined to hear the Government’s appeal of the Fifth Circuit’s preliminary injunction in United States, et al. v. State of Texas, et al. which prevented the creation of the DACA-like program for adults as well as expanding the pool of illegal aliens who would qualify for DACA and extending coverage periods to three years from two.

Further, Secretary Kelly’s memorandum stated plainly the “Department no longer will exempt classes or categories of removable aliens from potential enforcement” but four sentences later, suggests “regardless of the basis of removability, Department personnel should prioritize removable aliens who: (I) have been convicted of any criminal offense; (2) have been charged with any criminal offense that has not been resolved; (3) have committed acts which constitute a chargeable criminal offense; ( 4) have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency; (5) have abused any program related to receipt of public benefits; (6) are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or (7) in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.”

Similarly, ICE claims “Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems” was “rescinded and replaced” by the aforementioned Johnson memorandum “Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants” issued November 20, 2014, and ICE Directive 10074.2 “Issuance of Immigration Detainers by ICE Immigration Officers” issued March 24, 2017; however, neither document expressly mentions doing so.

Given confusion about preceding and superseding documents governing the enforcement actions and priorities in the nation’s interior by ICE, and the likelihood the continued existence of the ‘Morton Memos’ will be exploited by the lawfare crowd and enforcement activities enjoined by the resistance judiciary, it would behoove Acting Director Mark Morgan to work with the Executive Associate Directors for Enforcement and Removal Operations and  Homeland Security Investigations, as well as the agency’s Principal Legal Advisor to ensure incoming Acting Director Matthew Albence can focus on efficiently and effectively managing the organization and defending it from an emboldened radical House of Representatives who unlike like those in the general population screaming and hashtagging AbolishICE, have the ability to continue to actually do so through legislation though they’ll likely just continue their neutering of it while the field of Democrat Presidential nominees try to outdo each other over open borders promises. 

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