What were the Morton memos and how did they change ICE enforcement practice?
Executive summary
The Morton memos were a set of 2011 internal memoranda from then‑ICE Director John Morton that formalized prosecutorial discretion and new enforcement priorities for apprehension, detention, and removal—telling ICE personnel to prioritize threats to public safety and national security and to exercise case‑by‑case discretion for others [1] [2] [3]. They aimed to focus limited ICE resources on serious criminals while protecting victims, witnesses, and non‑threatening individuals, and they reshaped both written policy and field practice debates across government and advocacy groups [1] [4] [2].
1. What the Morton memos actually were: policy guidance, not law
The Morton memos—most prominently the March 2, 2011 “Priorities” memo and the June 17, 2011 prosecutorial discretion memoranda—were internal ICE policy documents that set forth civil immigration enforcement priorities and instructed ICE personnel how to exercise discretion in individual cases rather than creating statutory changes [1] [3] [5]. The guidance explicitly stated it should not be read to categorically prohibit enforcement but told agents and attorneys to concentrate resources on certain priority classes while considering humanitarian and public‑interest factors in others [1] [2].
2. Key elements: who to target and who to shield, in theory
Morton articulated enforcement categories that put highest priority on national‑security and serious criminal threats, and directed the maximum use of discretion in cases involving crime victims, witnesses, and plaintiffs in good‑faith civil rights suits; it also listed ties such as family, education, and military service as factors counseling against initiation of removal in many cases [1] [3] [2]. The memoranda also provided non‑exhaustive lists of exemptions and decision factors intended to guide officers and ICE attorneys when deciding whether to arrest, detain, or remove an individual [1] [6].
3. How the Morton memos changed ICE enforcement practice — intended effects
Administratively, the memos sought to redirect ICE away from broad sweeps toward targeted enforcement, encouraging case‑by‑case review and alignment of actions across DHS components so scarce resources would focus on public‑safety threats [4] [2]. Immigration advocates and practitioner groups praised the memos for creating a clearer architecture for “smart enforcement” that would avoid initiating removal against victims and witnesses and better calibrate detainers and prosecutions to priorities set by the agency [7] [4].
4. How the Morton memos changed ICE enforcement practice — real‑world limits and uneven application
In practice, implementation varied across field offices and over time: some ICE offices and officials invoked the guidance to decline or decline to prioritize removal, while others ignored or narrowly applied it, producing complaints from attorneys and advocates that the memos were inconsistently enforced [7] [4]. Opponents argued the memos amounted to de facto non‑enforcement or administrative amnesty, claiming they substantially curtailed immigration enforcement and undermined statutory obligations—a critique advanced by groups such as CIS and FAIR [6] [8]. Both perspectives point to a key fact in the memos themselves: they were guidance, not binding law, and their impact depended on leadership, local practice, and subsequent policy shifts [1] [4].
5. Criticisms, political fallout, and legacy
The Morton memos sparked political backlash, union votes of no confidence, and sustained debate about discretion versus uniform enforcement, with critics charging subversion of the law and supporters framing the memos as essential prioritization given resource constraints [6] [8] [3]. Their legacy includes influencing subsequent guidance and programs that attempted to refine local cooperation (e.g., shifts from Secure Communities to alternatives) and remaining a touchstone in arguments about the limits of agency discretion—while later administrations and memos have both reinforced and rescinded aspects of Morton’s approach, underscoring that the memos changed practice primarily by providing a framework subject to political and operational winds [9] [4] [5].