Letter to The Honorable John T. Morton, Assistant Secretary, Immigration and Customs Enforcement


By:  Jeff Sessions III Thomas Coburn Chuck Grassley Orrin Hatch Mike Lee Lindsey Graham
Date: July 13, 2011
Location: Washington, DC

The Honorable John T. Morton
Assistant Secretary
Immigration and Customs Enforcement
Department of Homeland Security
500 12th Street, SW
Washington, DC 20536

Dear Assistant Secretary Morton:

We write to express concern about your June 17, 2011 policy memoranda entitled, "Prosecutorial Discretion: Certain Victims, Witnesses and Plaintiffs" and "Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens," respectively. We believe these memoranda attempt to grant administrative amnesty to millions of illegal aliens and create an utterly unprincipled enforcement strategy that is an affront to the rule of law and to the authority of the United States Congress. While prosecutorial discretion is justifiable in certain cases, your directives recklessly distort its traditional use beyond recognition and constitute an impermissible intrusion on the Congress's plenary authority over immigration law and policy.

Your first memorandum directs ICE personnel to "exercise all appropriate prosecutorial discretion to minimize any effect that immigration enforcement" would have on illegal aliens who are plaintiffs in civil rights cases or have disputes "with an employer, landlord, or contractor," among others. Your directive provides illegal aliens with yet another loophole to avoid removal by encouraging the filing of frivolous lawsuits.

Your second memorandum, which purports to provide "guidance on the exercise of prosecutorial discretion" to ICE personnel, is deeply troubling for two reasons. First, it "clarifies" that prosecutorial discretion may be used in a broad array of activities, including: deciding whom to stop, question and arrest; granting deferred action, humanitarian parole, or staying a final order of removal; settling or dismissing a proceeding; and even canceling a Notice to Appear. Second, the memorandum sets forth a startling array of considerations ICE Agents and Attorneys should take into account when exercising prosecutorial discretion. These include:

* The alien's age, with particular consideration for minors;
* The alien's length of presence in the U.S.;
* The circumstances of the alien's arrival in the U.S., particularly if the alien came to the U.S. as a young child;
* "The alien's pursuit of education in the U.S., with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing college or advanced degrees at a legitimate institution of higher education in the U.S.";
* Whether the alien has served in the U.S. military;
* The alien's criminal history;
* The alien's "ties and contributions to the community.

These items, while representing only some of the considerations outlined in your memorandum, are almost identical to the provisions allowing for amnesty under the DREAM Act. As you recall, the DREAM Act failed last December due to bipartisan opposition. By including these elements as "considerations" for prosecutorial discretion, we believe you have expressly flaunted Congress's Constitutional authority and the will of the American people.

Under this administration, the Department of Homeland Security has repeatedly failed to enforce immigration laws and sought to effectively undermine measures enacted by Congress through administrative orders and internal memorandum. The United States Senate has rejected mass amnesty and the DREAM Act. We expect that action not to be undermined or circumvented by the Executive Branch by refusing to enforce the law as passed.

Accordingly, we respectfully request that you immediately rescind your memoranda, and draft another version indicating your understanding of and respect for both the rule of law and Congress's plenary authority over immigration law and policy.

We look forward to your prompt reply.

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