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While other directives had made similar proclamations directing ICE agents to focus their enforcement attention on immigrants with criminal histories, the Morton memo was unique in explicitly stating the responsibility of ICE personnel to, among other obligations, consider prosecutorial discretion throughout their dealing with an immigrant’s case—even if an individual had not requested discretion. The memo also mandated a plan to review all deportation cases before immigration courts, with the aim of stopping the deportation of immigrants not within ICE’s stated priorities for removal: individuals who had committed two or more felonies or a single aggravated felony.
Essentially, the Morton memo was meant to reduce the number of immigrants with minor or no criminal complaints who ended up in deportation proceedings when stopped during a traffic arrest or other encounters with local police.
Together, these initiatives aimed to ease some of the burden of harsh immigration enforcement policies on Latino communities, who were a significant voting bloc in electing Obama in 2008, while avoiding the political hurdles of passing immigration reform through Congress. But in reality, only a fraction of cases in immigration court were closed based on prosecutorial discretion: 6.8 percent as of August 2014, according to the Transactional Records Access Clearinghouse, a data collection project based at Syracuse University.
And as of fiscal year 2013, the majority of immigrants deported by the Obama administration still had either no criminal offenses or had been arrested for a minor offense like a traffic violation—an area that was not within ICE’s stated list of priorities for deportation.
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