The Morton Memo: Supplemental Guidance for ICE Agents

There is a joke developing out here in the field: How many ICE agents does it take to apply the June 17, 2011, Morton Memo? Answer: Two—one to read it and another to ignore it.

That’s how I felt last week when the ICE Detroit Field Office issued a terse denial to a well documented application to stay a deportation. The client, an undocumented Mexican woman, is the daughter of a U.S citizen father and lawful permanent resident mother, and has been in the U.S. for many years. She is the mother of four (4) U.S. citizen daughters and the sister of ten (10) siblings, all of whom are either U.S. citizens or lawful permanent residents. In its abrupt refusal to exercise prosecutorial discretion the ICE Detroit Field Office didn’t even bother to ask itself, as required by the Morton Memo, whether she is an immigration enforcement priority.

So I asked the ICE Field Office to reconsider its denial and again referred them to the Morton Memo as well as Homeland Security Secretary Janet Napolitano’s August 18 announcement. These documents create the best architecture yet for smart enforcement of the immigration law—the targeting of dangerous criminals and national security threats. Yesterday afternoon the ICE Detroit Field Office did the right thing and granted this mother of four a stay of deportation. But not before a lot of ICE resources were wasted re-examining the case and responding to a brewing local media storm.

It’s not supposed to work this way.

The Morton Memo, while not perfect, is clear. It is written in plain English, clearly intended to be read and understood by ICE rank and file and legal professionals alike. ICE agents are supposed to be smart about immigration enforcement. That means they are required to consider each case on an individual basis. Where the person is not an enforcement priority—a dangerous criminal or national security threat—ICE agents are supposed to consider putting the case on the back burner so they can go after those immigration violators who would do our communities harm. ICE agents and prosecutors are required to evaluate whether justice is being served rather than blindly prosecuting every case.

The Morton Memo is its own guidance. It needs no further explanation. But for those ICE Field Office Directors and agents around the country who may still be confused, I have taken the liberty of drafting the following Supplemental Guidance on Smart Enforcement, lest there be any doubt about how they are supposed to enforce the immigration law:

Supplemental Guidance on Smart Enforcement to ICE Agents

Use common sense. Please go after dangerous criminals and national security risks so that we can keep America’s borders and communities safe. Also, please avoid wasting tax dollars on hard working mothers, fathers, and DREAM students. If you have any further questions, simply ask yourself:  is what I am doing making America safer?

by David Leopold