What is Prosecutorial Discretion?
Prosecutorial discretion is the power of the U.S. Government, specifically immigration agencies such as the U.S. Citizenship and Immigration Services (USCIS) acting for this power through the U.S. Department of Homeland Security (DHS) and the U.S. Immigration and Customs Enforcement (ICE) to make decisions about cases that are not deportation priorities for them.
Prosecutorial discretion is the power of these agencies to stop working on a deportation case based on criteria and factors that allow them to qualify one case as more important and another as a non-priority. Since there is a need to optimize resources and focus on the cases of undocumented immigrants who pose a threat to the country and its security, immigration agencies must choose whether or not to deport all undocumented immigrants. However, this would mean an investment of time, money, and logistics. Therefore, analyzing case by case, they have been able to determine that there are deportations that must be done immediately and others that, on the contrary, can be qualified as non-urgent. This is where prosecutorial discretion applies.
Based on a series of determining factors, prosecutors decide and qualify the case as non-relevant and have the power to dismiss it if they consider it is not a priority. Prosecutorial discretion also gives prosecutors the power to decide whether to grant the person parole or deferred action and whether to release the person from jail.
Depending on the case, they (the prosecutors) may also issue a stipulation. That is, they rule that the person is eligible for the relief they are seeking and that they won’t have a final hearing. Therefore, they will only have to approve the application that is pending in Immigration Court. However, they usually dismiss the case. ICE can also decide whether to cancel a Notice to Appear (NTA). The NTA means that the immigrant in question must appear in an Immigration Court, so by canceling it, they prevent the notice from reaching the court and can close the case.
Who qualifies for Prosecutorial Discretion?
In order to apply for prosecutorial discretion, there are several rules and factors that must be considered before it is granted. If you qualify for prosecutorial discretion, you should apply as soon as possible, as the immigration rules are constantly changing.
Therefore, if you have a case pending in an immigration court, and you do not know if you are going to win it, it is important to apply as soon as possible, as it is better to have it dismissed than to run the risk of being deported.
As of today, it is considered a priority for deportation:
- Anyone who affects or threatens the National Security of the United States: terrorists, spies, criminals, and convicts. These types of people will not qualify for prosecutorial discretion.
- Depending on the date of entry to the United States: all persons who entered after November 1, 2020, are a priority for deportation, so persons who entered before that date are technically not a priority for deportation.
There are certain crimes that are not considered serious, which may not take away your opportunity to apply for prosecutorial discretion, such as non-licensing cases and some minor traffic infractions. However, if you have a DUI (driving under the influence), domestic violence or any violent crime, or if you have been selling drugs or involved in a drug-related crime (unless it is less than an ounce of marijuana), this may be reason enough for your petition to be denied.
In short, the same infractions that would prejudice you in any immigration case would affect you if you apply for prosecutorial discretion.
Some of the factors immigration agencies will consider in granting prosecutorial discretion include:
- How long you have been in the United States
- Your immigration history
- The way you enter
- Your legal status
- Your work history
- If you have done any studies in the United States
- If you have been the victim of a crime or are a witness to a crime
- If you are a plaintiff in a civil or criminal case
- If you qualify for immigration relief
- If you have done good things in your community
- Humanitarian factors
- If you are ill or someone in your family is ill
- Your age
- If you are pregnant
- If you have to care for someone who is ill here in the U.S.
The importance of an immigration attorney during the application process
It is of utmost importance to have the advice of an immigration attorney in case of filing an application for prosecutorial discretion. First, because immigration laws are constantly changing and the attorneys receive timely notifications of adjustments, they will file your application according to the current and updated regulations. Likewise, they will be able to follow up on your case, amend any omissions if deemed necessary, and/or update your information, among others.
Second, because there is a specific way to apply, there are formalities. There are forms that must be completed in order for the U.S. Department of Homeland Security (DHS) or the U.S. Immigration and Customs Enforcement (ICE) to agree to review your case. For example, you cannot apply with a physical form since submitting the application to ICE requires you to have an account in their electronic system. In addition, there is also no form, which makes it even more complicated to determine what information you should submit and what information you should omit, either because it is unnecessary or because it may harm your case.
Third, and most importantly, because the attorney must analyze your case before applying, review whether you have a real chance of obtaining prosecutorial discretion, and make sure that submitting this application will not put you at a real risk of deportation. Keep in mind that if you are not in deportation proceedings but you are undocumented, applying and bringing your status to ICE’s attention may result not only in a denial of your request for prosecutorial discretion but also an order of deportation.
Along with the application, you must submit your immigration history, including the exact date of entry to the United States, how you entered the country, and all details of your movements in and out of the country. An immigration attorney will help you prepare your case with all the necessary evidence.
In addition, you will need evidence of the amount of time you have been in the country, a list of family members living here, and evidence showing all of the above factors, such as community ties, jobs performed, medical records, criminal and FBI records. As well as final dispositions of any court cases you have had and tax returns, among others.
You need all evidence that helps to demonstrate that you are not a priority for them and that you meet the factors for them to grant you prosecutorial discretion.
Your immigration status
Once you have been granted prosecutorial discretion, you know that you will not be deported. However, that is not the end of your case because prosecutorial discretion does not give you a direct path to U.S. citizenship. Prosecutorial discretion is one of the immigration options that help you stay in the U.S. but, you will have to take other steps, as you will be without immigration status and probably without a court date. This is when you should discuss your options with an immigration attorney, apply for your work permit, and decide which process you qualify for.
If you have been in the United States for a long time, have no criminal record, do not pose a danger, have a family, and have generally behaved properly, you can contact an immigration attorney to analyze your case, as you may be granted prosecutorial discretion.
You can apply almost at any time. However, consider the legal advice of an immigration attorney before doing so because if you are not in deportation proceedings, there may be other options that are more suitable for your case.
Prosecutorial discretion is not a new issue, as it has been in place since the time of President Barack Obama. However, under President Donald Trump, ICE was prevented from applying discretion and establishing priority cases. Therefore, during those four years of government, it was practically not applied. To date, there are still changes, and although President Biden’s administration recently reinstated it, more adjustments are expected.
Prosecutorial discretion allows you to apply to have your case closed if you have received a Notice to Appear (NTA), as long as you are not a priority for deportation. We recommend that you apply, as it is better to close your case than to have your deportation confirmed. If your request for prosecutorial discretion is denied, you can reapply. Just make sure you have the right advice from an immigration attorney.