By Connie S. Hill, Esq.
If you are in removal proceedings, and there are no other forms of relief available to you, prosecutorial discretion is a form of relief that you may be able to pursue.
Prosecutorial discretion is the power of the Immigration and Customs Enforcement (ICE) to influence an immigration judge to administratively close your case. Administrative closure means that ICE will stop prosecuting your case and will not attempt to deport you. ICE may still attempt to deport you in the future, but if they do, they will give you notice and the opportunity to challenge your deportation.
If another form of relief becomes available to you after your case is administratively closed, ICE may also influence an immigration judge to reopen your case, so that you may apply for such relief.
In deciding whether to grant prosecutorial discretion, some of the factors that ICE will take into consideration are:
• the length of presence in the United States, with particular consideration given to presence while in lawful status;
• the circumstances of the person’s arrival in the United States and the manner of his of her entry, particularly if the alien came to the United States as a young child;
• the person’s pursuits of education in the United States,
• the person’s criminal history;
• the person’s immigration history such as prior removal, outstanding order of removal or evidence of fraud;
• whether the person poses a national security or public safety concern;
• the person’s ties and contributions to the community, including family relationships; and
• the person’s ties and contributions to the home country and conditions in the country.
The above factors are only a few of the many factors that ICE will take into consideration when weighing whether an exercise of prosecutorial discretion is warranted. No one factor is determinative and ICE will base its decisions on the totality of the circumstances, with the goal of conforming with ICE’s enforcement priorities. ICE will not exercise prosecutorial discretion if it considers your case to be of high-priority. If you do not meet the high-priority factors below, ICE may consider your case low-priority and exercise prosecutorial discretion. The following are considered to be high-priority factors:
• individuals who pose a clear risk to national security;
• serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
• known gang members or other individuals who pose a clear danger to public safety; and
• individuals with a record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.
The type of prosecutorial discretion you may request depends on the status of your case:
1. If your case is currently before an immigration judge or the Board of Immigration Appeals (BIA), and you have not received a final order of deportation, you may request that your case be administratively closed.
2. If you have completed your removal proceedings (including an appeal to the BIA) and you were ordered deported but you are on appeal to the Circuit Court of Appeals or waiting for your physical removal from the country, you can request a stay of deportation. A stay of removal means ICE will temporarily not deport you for a period of time, generally for one year. You may then renew your stay for another year.
3. You may request deferred action at any point in the deportation process, whether you are currently before an immigration judge, on appeal, or have already been ordered deported. Similar to administrative closure, deferred action means that ICE temporarily stops trying to deport you, but does not prevent them from trying to do so again in the future. The main benefit of deferred action is that you will be eligible for a work permit. Deferred action is rarely granted. However, if you have a strong case for prosecutorial discretion, you could request both deferred action and administrative closure in your case.
Except for individuals granted deferred action, if prosecutorial discretion is exercised, it does not make you eligible to receive a work permit. If you were not eligible to receive a work permit before, then you will not be eligible to receive one after ICE exercises prosecutorial discretion. However, if you were eligible to receive a work permit prior to ICE exercising its discretion, your eligibility will not be affected if ICE grants you an exercise of prosecutorial discretion.
Since there are numerous factors involved when requesting that ICE exercises prosecutorial discretion, it is a very complicated process. A consultation with an immigration attorney would help you to determine whether you would be a good candidate based on the above-mentioned factors, and also provide guidance regarding the type of prosecutorial discretion that you should request.