Under the Morton memo, DHS can determine whether a case is low priority or not. In order to do so, certain specific factors are to be considered and applied individually to each case. While DHS has made clear that no category of cases will receive a blanket exercise of favorable prosecutorial discretion (still unclear as to what exactly this means – but many hope for determination that if the case is low priority it may thus be administratively closed), the memo lists certain categories of individuals who may receive preferential attention. This list includes: veterans, long-time permanent residents, minors and the elderly, individuals who have been living in U.S. since childhood, individuals with serious disabilities or health issues, women who are nursing or pregnant, and victims of domestic violence or other serious crimes. The memo also identifies more general factors to be considered in all cases, and DHS is to weigh the totality of the circumstances in each case.
Cases currently before the immigration courts and the BIA are to be reviewed and those that are deemed low priority are to be administratively closed. Removal cases currently pending in federal court will also be reviewed and low priority cases will be considered for an exercise of prosecutorial discretion, although it is still not clear what exactly this entails.
Note that is still unclear what will happen to all new cases determined to be low priority. DHS has indicated that the working group will initiate a case-by-case review to ensure that new cases placed in removal proceedings meet DHS’s current enforcement priorities. However, it is not clear how extensive this review will be or how long it will last.
New guidelines are expected as well to prevent low priority cases from entering the system in the first place. However, it remains to be seen whether a case identified as “low priority” will avoid placement in removal proceedings, or whether these new cases will be placed into removal proceedings and then administratively closed.