Immigration 101: Prosecutorial Discretion

People in removal proceedings may be able to avoid being removed by asking the ICE attorney who is handling your case to agree to exercise “prosecutorial discretion.” Prosecutorial discretion isn’t technically a form of relief from removal, but it has a similar effect. Basically, a grant of prosecutorial discretion means that the government has decided not to continue pursuing its case against you. It doesn’t mean that you have been given legal status in the US, though, or that the government can’t decide to reopen removal proceedings against you.

Prosecutorial discretion exists because ICE attorneys who prosecute immigration cases have limited time and resources, and it’s not possible or practical to pursue every single removal case that comes before them. They try to prioritize the cases they handle in order to focus on cases against people who present the most danger to the US. For example, ICE attorneys would rather spend their time trying to remove a gang member who has been convicted of multiple drug-related crimes in the three years since he unlawfully entered the US than a single mother with four US citizen children who has been in the country for 25 years and has never been convicted of a crime.

There are no specific rules or eligibility requirements for prosecutorial discretion, and anyone may ask the ICE prosecutor to exercise discretion in their case. President Obama’s administration issued a memo to ICE attorneys saying that ICE should prioritize cases against people who commit serious crimes, engage in visa fraud or abuse, entered the country only recently, or were apprehended at the border. Even if you fall into one of those categories, you may still be able to obtain a grant of prosecutorial discretion, especially if you can show that there are positive equities (balancing factors and circumstances) in your case that outweigh any negative ones.

Convincing an ICE attorney to exercise prosecutorial discretion is not easy, especially because the Trump administration has adopted policies that will make the process significantly more difficult. An experienced immigration attorney will understand which equities are the most convincing, and can help you identify and document the equities in your case. Having an attorney on your side may make a big difference in whether the prosecutor decides to grant your request.

This article is part of our ongoing “Immigration 101” series, in which we break down topics in US immigration law. For more articles in this series, click here.

The content in this post was originally written by Stuart Nickum and adapted by Lena Barouh.

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