Please Note: This article was published in 2015 and does not contain current information.
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Recently there has been a lot of talk in the immigration world about “prosecutorial discretion.” If you are an alien in immigration court proceedings, it’s important that you and your lawyer understand what prosecutorial discretion is and how it might help your case. This blog article will address three common questions about prosecutorial discretion:
1) What is Prosecutorial Discretion?
2) What are the Different Kinds of Prosecutorial Discretion in Immigration Court?
3) How Can I Get Prosecutorial Discretion in Immigration Court?
What is Prosecutorial Discretion? The first thing you should know is that prosecutorial discretion is not a form of relief like cancellation of removal, asylum, voluntary departure, etc. You won’t find a law in the United States Code or the federal regulations entitled “Prosecutorial Discretion.” In immigration court, prosecutorial discretion is basically the authority of the ICE attorney to decide whether and to what degree he or she is going to enforce the immigration laws of the U.S. against you. When you and your lawyer ask the ICE attorney to “exercise prosecutorial discretion,” you are asking the ICE attorney not to do everything he or she could do to get you deported from the U.S. In practice, there are different kinds of prosecutorial discretion. What are the Different Kinds of Prosecutorial Discretion in Immigration Court? Prosecutorial discretion in immigration court comes in many forms. However, a few examples of the things an ICE attorney can do as a matter of prosecutorial discretion include:
- Joining in a motion to terminate your case
- Joining in a request for administrative closure
- Agreeing to voluntary departure
How Can I Get Prosecutorial Discretion in Immigration Court? There are no formal requirements to receive a favorable exercise of prosecutorial discretion from the ICE attorney.Additionally, you need to understand that the ICE attorney never has to afford you a favorable exercise of prosecutorial discretion. If you have broken the immigration laws of the U.S., the ICE attorney can choose to argue in favor of your deportation. However, if you have certain positive factors, there is a good chance that the ICE attorney will agree to a favorable exercise of prosecutorial discretion in your case. Here is a list of some of the things that might cause the ICE attorney to exercise prosecutorial discretion:
- You have long term presence in the U.S. (especially as a lawful permanent resident)
- You are an elderly alien
- You were brought to the U.S. as a young child
- You have evidence of educational pursuits (high school diploma, college, etc.)
- You or an immediate relative have served in the military (especially in combat)
- You are a pregnant or nursing woman
- You have significant family ties to the U.S. (especially having a U.S. citizen or resident spouse, child, or parent)
- You have severe mental or physical illness, or a close relative who is a U.S. citizen or resident has such illness
- You are the victim of domestic violence, human trafficking, or other crimes
- You have cooperated or are cooperating with federal, state, or local law enforcement authorities (ex: serving as a witness, informant, etc.)
None of these factors will guarantee a favorable exercise of prosecutorial discretion, but having one or more will certainly help your odds. There are also several factors which will hurt your chances of getting prosecutorial discretion.Those factors include, but are not limited to:
- You are a serious felon, repeat criminal offender, or have a lengthy criminal record;
- You are a known gang member or other person who is a clear danger to public safety;
- You have a bad record of immigration violations, such as multiple illegal entries into the U.S. or immigration fraud
Prosecutorial discretion is a broad subject. Next week’s blog article will discuss prosecutorial discretion options for aliens who have not yet been put in deportation proceedings, and for those who already have a removal order from an immigration judge.  If this happens and the immigration judge grants the motion, you will no longer be in immigration proceedings and you will not have to come back to immigration court unless ICE decides to re-initiate your proceedings. The benefit of termination is that you will no longer have to worry about being ordered deported by the immigration judge. A joint motion to terminate is the ICE attorney’s way of letting you stay in the U.S. to try to fix your immigration status through the Department of Homeland Security and/or the Department of State.  If your case is administratively closed, you are still considered to be in immigration proceedings, but your case is taken off the docket. Aliens whose cases are administratively closed often do not have to come back to court for several years. That extra time frequently allows the alien to become eligible for relief from deportation.  If you receive and comply with an order of voluntary departure, you will not be ordered deported from the U.S. This means you will avoid the 10 year bar to re-entry that comes with a removal order, making it easier for you to lawfully return to the U.S. INA § 212(a)(9)(A)(ii).  See, e.g., Panova-Bohannan v. Ashcroft, 74 Fed. Appx. 424, 425 (5th Cir. 2003) (“The BIA has consistently held that so long as the enforcement officials of the Service choose to initiate proceedings against an alien and to prosecute those proceedings to a conclusion, the immigration judge and the Board must order deportation if the evidence supports a finding of deportability on the ground charged.”) (internal quotations omitted).  See John Morton, Memorandum, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, at 4-5, Policy No. 10075.1, June 17, 2011.  Id.