The Morton Memos: Giving Illegal Aliens Administrative Amnesty

What are the Morton Memos?

At the urging of the open borders lobby, the Department of Homeland Security (DHS) in early 2011 began to implement formal measures to relax the enforcement of U.S. immigration laws through a series of memos issued by Immigration and Customs Enforcement (ICE) Director John Morton.  Together, these memos constitute nothing less than the granting of administrative amnesty to hundreds of thousands of illegal aliens currently in the United States.

What do the Morton Memos say?

  • Director Morton has issued several critical policy memos relating to deportation policy over the course of 2011. The key memos are the following:
     
    • March 2, 2011: Limits the enforcement of immigration laws to a subset of illegal aliens who have been convicted of crimes.
       
    • June 17, 2011 (I): Discourages ICE Agents from enforcing our immigration laws against certain segments of the illegal alien population, including aliens who qualify for the DREAM Act
       
    • June 17, 2011 (II): Discourages ICE Agents from enforcing our immigration laws against crime victims, witnesses to crime, and "individuals pursuing legitimate civil rights complaints," defined very broadly.
       
    • August 18, 2011 (Napolitano letter to Sen. Harry Reid): Announces a case-by-case review of all aliens currently in or will be entering deportation proceedings in order to determine which ones the Administration will grant administrative amnesty.
       
    • November 17, 2011 (Memo with two attachments I and II): Sets strict guidelines ICE attorneys must follow when reviewing all deportation cases; announces a pilot program for the review of all pending deportation cases.
       
    • December 29, 2011: Shifts the agency to a "post-conviction" deportation model by creating a new provision on its detainer form allowing ICE agents to consider the detainer operative only upon the alien's conviction.
       
    • April 27, 2012: Limits the Secure Communities program to meet the Administration's enforcement priorities by stating the agency will no longer be enforcing the law against illegal aliens apprehended for "minor traffic offenses" and encouraging local agencies not to submit fingerprints to the FBI or DHS for individuals arrested for "minor offenses."
       
    • June 15, 2012: Administratively enacts the DREAM Act by instructing DHS personnel to refrain from deporting illegal aliens up to the age of 30 who meet certain criteria; qualifying illegal aliens are granted deferred action status for a renewable period of two years and are eligible for work authorization and a Social Security card.
       
    • December 21, 2012: Limits the circumstances under which ICE agents can issue detainers and take custody of illegal aliens in the hands of local law enforcement officials; also cuts the 287(g) immigration enforcement program in half.
       
  • To read more details about the contents of the Morton Memos, read FAIR's Summary of the Morton Memos.

Why do the Morton Memos represent bad immigration policy?

  • The rule of law requires that the Department of Homeland Security enforce our immigration laws uniformly against all illegal aliens. 
     
  • The Executive Branch should not — for political reasons — be allowed to pick and choose which illegal aliens are subject to immigration enforcement.  Nor should the Executive Branch circumvent Congress by establishing secret "working groups" to grant administrative amnesty to illegal aliens.
     
  • Together, these memos constitute nothing more than the Obama Administration's efforts to grant amnesty to huge portions of the illegal alien population by executive fiat since it was unable to convince Congress and the American people to support mass amnesty legislation. 
     
  • Granting amnesty (administrative or legislative) to illegal aliens undermines the integrity of our immigration system.  In only encourages more illegal immigration and fraud, and threatens our national security.  It is also inherently unfair to immigrants who have come to the U.S. legally and individuals all over the world who are waiting patiently in line — sometimes for years — to immigrate to the U.S. legally.

Morton Memos Summary

Under growing pressure from open borders groups that accuse the Obama Administration of removing too many illegal aliens, the Department of Homeland Security (DHS) in early 2011 began to implement formal measures to relax the enforcement of U.S. immigration laws.  DHS has set forth its new policies regarding removal in a series of memos issued by Immigration and Customs Enforcement (ICE) Director John Morton.  Together, these memos constitute nothing less than the granting of administrative amnesty to hundreds of thousands of illegal aliens currently in the United States.   

On March 2, 2011, ICE Director John Morton issued a policy memo to ensure that his agency would only enforce the law against a specific subset of illegal aliens by setting forth new priorities for the apprehension, detention, and removal of illegal aliens.  This subset, according to Director Morton, includes:

  1. Aliens who pose a danger to national security or are a risk to public safety;
  2. Illegal aliens who have recently entered the U.S.; and
  3. Aliens who are fugitives or "otherwise obstruct immigration controls."

Under this memo, ICE's priorities do not include the vast majority of illegal aliens currently in the United States — i.e. those who have neither been convicted of a crime or have been caught and absconded.  Although the memo states that nothing in it shall be construed "to prohibit or discourage" enforcement of U.S. immigration laws in general, it concludes that "resources should be committed primarily to advancing the priorities set above."   

On June 17, 2011, ICE Director John Morton issued two policy memos.  The first was intended to discourage ICE agents from enforcing U.S. immigration laws against illegal aliens who would qualify for the DREAM Act — amnesty legislation that Congress voted down in both October 2007 and December 2010.  In the memo, Morton writes that due to a lack of resources, the agency "must regularly exercise 'prosecutorial discretion' if it is to prioritize its efforts."  Morton states that appropriate moments to exercise prosecutorial discretion include:

  1. Deciding whom to stop, question, or to arrest for being unlawfully in the country;
  2. Deciding whom to detain or release;
  3. Settling or dismissing a proceeding; and
  4. Executing a removal order.

According to Morton, appropriate factors to consider when exercising prosecutorial discretion include:

  • ICE's civil immigration enforcement priorities (i.e. the memo from March 2, 2011);
  • The alien's length of presence in the U.S.;
  • Whether the alien came as a young child;
  • The alien's pursuit of education in the U.S. , with particular consideration to those who have graduated from a U.S. high school or are pursuing a college or advanced degree;
  • Whether the alien or the alien's immediate relative has served in the U.S. military;
  • The alien's criminal history; and
  • The alien's ties and contributions to the community.

These are all eligibility criteria for amnesty under the DREAM Act, legislation which Congress specifically rejected in both October 2007 and December 2010.  Moreover, the June 17th memo encourages ICE agents to take steps to exercise favorable discretion early on — without waiting for an alien or his lawyer to request it.  As Morton states, "[T]he universe of prosecutorial discretion is large."

The ICE Director issued a second policy memo on June 17, 2011 intended to discourage the enforcement of immigration laws against aliens who are victims of or witnesses to crimes.  The memo states, "[I]t is against ICE policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime."  Director Morton noted that while most state and local law enforcement agencies do not do so, ICE "regularly hears concerns that in some instances a state and local law enforcement officer may arrest and book multiple people at the scene of alleged domestic abuse." 

However, Morton then issued a directive that applies much more broadly than shielding crime victims or crime witnesses from U.S. immigration laws.  All ICE agents and attorneys, he wrote, should "exercise all appropriate discretion on a case-by-case basis when making detention and enforcement decisions in the cases of victims of crimes, witnesses to crimes, and individuals pursuing legitimate civil rights complaints." Particular attention should be paid to:

  • Victims of domestic violence, human trafficking, or "other serious crimes";
  • Witnesses involved in pending criminal investigations or prosecutions;
  • Plaintiffs in non-frivolous lawsuits regarding civil rights or liberties violations; and
  • Individuals engaging in a protected activity related to civil or other rights (for example, union organizing or complaining to authorities about employment discrimination or housing conditions) who may be in a non-frivolous dispute with an employer, landlord, or contractor. 

In the absence of "serious adverse factors" — which include a "serious criminal history," involvement in a "serious crime" or being a "threat to public safety" Morton told agents that "exercising favorable discretion, such as release from detention and deferral or a stay of removal generally, will be appropriate."

On August 18, 2011, Homeland Security Secretary Janet Napolitano announced in a letter to Senate Majority Leader Harry Reid (D-NV) that DHS is establishing an "interagency working group to execute a case-by-case review" of all pending and incoming deportation cases.  According to Napolitano, this review is intended to ensure that proceedings only continue against aliens who fall under the Department's priorities.  While the exact composition of the "working group" remains secret to-date, Napolitano states that DHS and DOJ attorneys, in addition to other personnel, will identify "low-priority" deportation cases (currently over 300,000) at every stage of the process that should be considered for an exercise of discretion.  It will also issue guidance to prevent "low-priority" cases from even entering the system in the first place.  This case-by-case approach, Napolitano writes, "will enhance public safety."

Finally, on November 17, 2011, ICE issued a memo (with two attachments) to all Chief Counsel within the agency directing ICE to immediately begin reviewing all incoming deportation cases.  It also announces that Homeland Security (in conjunction with the Department of Justice) is establishing a pilot program for reviewing all pending deportation cases. This pilot program will begin in Baltimore and Denver immigration courts December 4 and will continue into January 2012. After the completion of the pilot programs, ICE will begin a nationwide review of all pending deportation cases to determine which illegal aliens it will allow to stay in the United States.

For both incoming and pending cases, the November 17 memo gives ICE attorneys strict guidance on how they must evaluate for the granting of prosecutorial discretion.  ICE attorneys must adhere to this detailed procedure when reviewing not only ICE removal cases, but also all of Customs and Border Patrol and U.S. Citizenship and Immigration Services (USCIS) cases.  In this procedure, ICE attorneys must determine whether removal cases fall into one of two categories: (1) cases that are enforcement priorities for the Department of Homeland Security (DHS) and thus must be pursued in conjunction with the Department of Justice (i.e. the typical process for a deportation case); and (2) cases that are not enforcement priorities for DHS and thus should be considered for administrative amnesty.

According to the memos, cases that are enforcement priorities include aliens who: (1) are suspected terrorists; (2) have been convicted of a felony or multiple misdemeanors; (3) are gang members or human rights violators; or (4) entered the country illegally or violated the terms of their admission within the last three years.  The last of these appears to be an express admission that ICE no longer intends to deport illegal aliens who have been in the country more than three years.

Cases that are not enforcement priorities and thus are eligible for administrative amnesty include aliens who meet the criteria of the failed DREAM Act.  These include aliens who came to the U.S. under the age of 16, who have been in the country for over five years, and who have completed high school or a GED program.  Other deportation cases eligible for administrative amnesty include those in which aliens have a "very long-term presence" in the U.S., have an immediate family member who is a U.S. citizen, and have made "compelling" ties and contributions to the U.S. to remain in the country.

On December 29, 2011 – via press release – ICE issued a new detainer policy that shifted the agency to a "post-conviction" deportation model.  This was a major shift from previous, longstanding enforcement policy.  Federal Law gives ICE the authority to take an alien into custody regardless of whether the alien is convicted of the crime for which he was taken into custody.  Federal law also provides that when an alien is in state or local custody, ICE agents can request jail officials to hold the alien for up to 48 hours to allow ICE agents to pick-up the alien to initiate deportation proceedings.  Nonetheless, ICE created a new detainer form that includes a provision allowing ICE agents to "Consider this request for a detainer operative only upon the subject's conviction." Completely ignoring that being in the country unlawfully is a violation of federal law, the press release specified that the conviction must be for the "offense for which [the alien] was arrested."

On April 27, 2012, ICE announced that it was limiting its Secure Communities program to meet the Administration's enforcement priorities. The announcement came in the form of a 20-page report ICE released to address a series of recommendations made by the Department of Homeland Security's
Secure Communities "Task Force." While ICE's responses to the recommendations varied, the agency made a significant policy shift by agreeing with the Task Force recommendation that it should refrain from enforcing the law against illegal aliens apprehended for "minor traffic offenses." Consequently, when Secure Communities identifies illegal aliens pursuant to a traffic offense, ICE no longer asks the local jails to detain the illegal aliens so that ICE may begin deportation proceedings. In addition, ICE's response to the DHS "Task Force" encouraged local agencies not to submit fingerprints to the FBI or DHS for individuals arrested for "minor offenses." The response read, "it should be noted that states can choose not to submit to the federal government the fingerprints for individuals arrested for minor offenses."

On June 15, 2012, DHS Secretary Janet Napolitano issued a policy memo circumventing Congress by instituting the failed DREAM Act administratively. To achieve this, Secretary Napolitano announced the Administration would  refuse to deport a subset of the illegal alien population by granting them deferred action (deferred action status is what DHS grants when it decides, in its own discretion, not to remove an illegal alien).

To be eligible under the new policy – called "Deferred Action for Childhood Arrivals" or DACA – an illegal alien must:

  1. Have come to the United States under the age of sixteen;
  2. Have continuously resided in the United States for at least five years preceding the date of this memorandum and be present in the United States on the date of this memorandum;
  3. Currently be in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Not be above the age of thirty.

In addition to granting the aliens deferred action, the Administration also announced the aliens will be eligible for work authorization — which also allows them to obtain a Social Security card.

That same day, ICE Director John Morton issued a subsequent memo informing ICE personnel of Secretary Napolitano's directive and instructed them to comply immediately with it. His memo reads, "ICE agents and officers should immediately exercise their discretion, on an individual basis, in order to prevent these low priority individuals from being placed into removal proceedings or removed from the United States."

Finally, on December 21, 2012 ICE Director John Morton issued a new policy memo limiting the circumstances under which ICE agents can issue detainers and take custody of illegal aliens in the hands of local law enforcement officials. Specifically, the memo instructs that ICE agents should issue a detainer against an alien only where they have reason to believe the alien is subject to removal and if one or more of the following conditions apply:

  • the alien has previously been convicted of or charged with a felony;
  • the alien has three or more prior misdemeanor convictions;
  • the alien has a prior misdemeanor conviction or has been charged with a misdemeanor offense that 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 alien has been convicted of unlawful entry or has illegally reentered the U.S. after a previous removal or return;
    • the alien has an outstanding order of removal;
    • the alien has been found by an immigration officer or an immigration judge to have knowingly committed fraud;
    • the alien otherwise poses a significant risk to national security, border security, or public safety.

As a result of the new policy, ICE agents can no longer take an alien into custody if the alien's only violation of the law is being in the country unlawfully; they must have committed an offense independent of their unlawful status.

In an ICE press release issued that same day, the agency announces that it would not be renewing any 287(g) immigration enforcement task force agreements with local law enforcement agencies. The release reads, "ICE has also decided not to renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program," and cites budget cuts as the reason for scrapping the program. Congress, however, has made no changes to the program's funding.