Thursday, July 14, 2011
On June 17, 2011, Immigration Enforcement chief Head John Morton issued an important policy memo on the use of prosecutorial discretion in immigration matters. Prosecutorial discretion authorizes immigration officers and attorneys to channel their limited enforcement resources towards the most dangerous, while placing sympathetic cases involving individuals with favorable qualities like full-time fathers, serious medical conditions, long-time employees and students with strong ties to the U.S. on hold. The use of prosecutorial discretion dates back to the 1970s, but Morton’s new memo is significant because it affirms the equities agents should consider in its discretion, empowers ICE attorneys to drop charges in low priority cases, and encourages ICE to consider prosecutorial discretion without waiting for an attorney to file a request.
So what does the Morton Memo mean for the Muslim men and boys caught up in the 9/11 dragnet called special registration? Shortly after 9/11, former Attorney General Ashcroft announced and later regulated a special registration program in which individuals were fingerprinted, photographed and interrogated by local immigration officers at airports and local immigration offices. The program was controversial from the start by attempting to find potential terrorists by religious and nationality-based profiling. The program was also riddled with other due process concerns ranging from the lack of notice (who reads the Federal Register with their breakfast?), hurdles for lawyers denied access to these registrations, and overbroad criminal and immigration consequences for non-compliance. Controversy turned to chaos as thousands of men who voluntary reported were detained, served deportation papers and removed in exchange for their compliance. Ironically, the agency’s decision to place 13,000-plus law-abiding teenagers and young men in removal proceedings because of an NSEERS snafu or status violation was a great abuse of prosecutorial discretion.
While the NSEERS program was scaled back in 2003 and most recently this past April, the problems associated with NSEERS linger nearly ten years later. Imagine, a now 25 year old married to a U.S. citizen or working for a U.S. employer who perhaps had no knowledge about registration at the ripe age of 16 and as consequence is denied a green card because he “failed” to register under NSEERS. Imagine, a now breadwinner and primary caretaker to elderly parents or U.S. citizen living in the U.S. who is facing removal because he was afraid to register under NSEERS based on the detentions and deportation faced by his neighbors or relatives. And consider, Mohammed G. Azam, a Bangladeshi man with compelling qualities who was placed in removal proceeding after complying with NSEERS in 2003 and only after years of counsel from a top immigration lawyer and an article in the New York Times, is no longer a priority for DHS.
Short of a complete repeal of the punishments associated with these registrations, it is critical that ICE apply the Morton Memo on Prosecutorial Discretion favorably towards NSEERS branded people who have laid down roots in the U.S., built families, and contributed to the U.S. economy and in short, possess the equities listed in the Morton Memo.