9th Circuit Stops Deportations, Wants Answers from Obama Administration

February 8, 2012

The 9th U.S. Circuit Court of Appeals ruled that the Obama Administration must make a prosecution decision by March 19, 2012 regarding 7 immigrants in five deportation cases (two involve couples). The immigrants all have no criminal records and met the criteria of the June 2011 Morton memos. They have been in the United States for extended periods of time and some have U.S. citizen children.

In a 2-1 ruling the court is requiring the Obama Administration to explain if 7 immigrants should remain in the United States and escape deportation per criteria set forth in the Morton memos. Deportation proceeding against the individuals have been halted until the judges hear from the Obama Administration.

Advocates and prosecutors state that the courts have "been too slow to call off deportation proceedings" of the immigrants who meet the criteria outlined in the memo. In other words, is the memo truly discretionary or should it be followed by ICE officials and the courts? The judges seek "internal guidance" and clarification from the executive branch.

The AP reported (emphasis added):
The American Immigration Lawyers Association says a survey it conducted in November showed that ICE's 28 offices were applying the new guidelines in varying degrees, causing confusion for immigrants, their attorneys and even prosecutors handling the cases. The Association claimed that many of the offices weren't using the guidelines at all.  
Reportedly, ICE is working with the U.S. Department of justice to respond to the court.

The discretionary memo was released on June 17, 2011 by ICE Director John Morton.

The memo lists 19 humanitarian criteria that should be considered when deciding whether prosecutorial discretion should be applied:
  • 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 also lists specific classes of persons who should be given “particular care” when making prosecutorial decisions including (emphasis added):
  • 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.
If this memo is followed few long-term foreign worker could be removed from the CNMI. However, we know that the CNMI has been treated differently than the U.S. mainland in regards to alien issues. While 11 million undocumented aliens have been included in Congressional immigration reform legislation, the 16,000 legal aliens of the CNMI have been typically excluded or partially included in proposed legislation (H.R. 1466) that mirrors the post-Civil War Black Codes.

In October 2011 USCIS Public information Officer Lori K. Haley confirmed that the Morton Memo, which addresses the deportation or removal of out of status aliens in the U.S., will be honored in the CNMI. (See these posts, Immigration Reform Moving Forward, DHS to Review 300,000 Deportations Cases)

Haley was quoted in the Saipan Tribune:
“The memo. . .which was issued by ICE Director John Morton in June 2010, provides guidance to ICE personnel agency-wide, including in the CNMI, about the agency's enforcement priorities. Specifically, ICE is focused on smart, effective immigration enforcement that prioritizes efforts to target those who present a risk to public safety or national security, along with criminal aliens and egregious immigration violators,” she said.


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