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BY LEON WILDES AND SHOBA SIVAPRASA WADHIA

Most remember John Lennon as a former Beatle, a brilliant musician, husband to artist Yoko Ono and target for deportation by the Nixon Administration. Less known is the story of how Lennon’s immigration saga enabled the first public discussion on prosecutorial discretion in immigration law.

After Lennon was placed in deportation proceedings, his immigration attorney, Leon Wildes, tried, without success, to obtain information for more than a year about INS’s policy for exercising prosecutorial discretion. A favorable exercise of prosecutorial discretion refers to the agency’s decision to not assert the full scope of enforcement authority available to the agency in a given case. Unable to get far in his correspondence with INS, Wildes filed a lawsuit under the Freedom of Information Act. In 1975, As a result of the lawsuit, Wildes received copies of the cases that had been granted prosecutorial discretion as well as the agency’s policy on prosecutorial discretion (then dubbed non-priority status).

The policy became public for the first time and appeared as an “Operations Instruction,” identifying youth, elderly age, long-time presence in the United States, a physical or mental health condition requiring care in the United States, and family ties as reasons why the agency should consider exercising prosecutorial discretion favorably. Subsequent agency memoranda from the Immigration and Naturalization Service and Department of Homeland Security have continued to favor prosecutorial discretion when these sympathetic factors are present. Our research of cases over several years also indicates that the favorable factors articulated in the 1975 Operations Instruction continue to be significant indicators for a favorable grant of prosecutorial discretion.

The role of prosecutorial discretion in immigration law was highlighted most recently in June 2011 when Immigration and Customes Enforcement (ICE) chief John Morton issued a comprehensive memo on the use of prosecutorial discretion in immigration matters. Building on the factors published as a result of the Lennon case, the Morton Memo lists several circumstances that should trigger a favorable exercise of prosecutorial discretion, noting that “particular care and consideration” should be given to long-time green card holders; minors and elderly individuals; those present in the U.S. since childhood; persons suffering a serious medical condition; and victims of domestic violence, trafficking, or other serious crimes; among others.

The Morton Memo also clarifies the authority of Immigration and Customs Enforcement attorneys to exercise discretion in any immigration removal hearing even when the charging officer is from outside Immigration and Customs Enforcement. This authority is significant because it allows the agency’s trial to serve as a “check” within a system where nearly every immigration officer (including those from the services agency known as United States Citizenship and Immigration Services) has the authority to bring charges against a noncitizen.

The Morton Memo also empowers Immigration and Customs Enforcement employees to consider cases for prosecutorial discretion early in the enforcement process and without relying on an affirmative request by an attorney. This clause is important because prosecutorial discretion has largely operated as a program reserved for seasoned private immigration attorneys with special relationships within the agency.

The Morton Memo potentially levels the playing field for individuals who may qualify for prosecutorial discretion if a specific set of equitable factors are present. Like with previous memoranda, the Morton Memo highlights the relationship between prosecutorial discretion and ICE’s limited monies to remove the entire unauthorized population, and further concludes that any exercise of prosecutorial discretion is tenuous at best and does not result in a right or benefit to the noncitizen.

Nevertheless, critics believe the Morton Memo serves as a new backdoor “amnesty” or circumvention of Congress in the wake of failed congressional action on immigration. Select members of Congress have gone so far as to announce legislation to prevent the administration from exercising prosecutorial discretion. But that is politics. The importance of prosecutorial discretion was revealed long ago with the case of John Lennon. More than thirty-five years later, prosecutorial discretion continues to serve as a smart enforcement policy that allows the immigration agency to prioritize its limited resources and place sympathetic cases on the backburner. Ultimately, the impact of the Morton Memo is important and can be measured only with diligent oversight by the private bar, Congress and the agency’s own watchdogs.

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