How to Apply for Prosecutorial Discretion

Undocumented immigrants in removal proceedings have an opportunity to request that the case be closed as a low enforcement priority.

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If you or someone you know is involved in immigration removal (or deportation) proceedings, you may consider requesting prosecutorial discretion. If successful, Immigrations and Customs Enforcement (ICE) will administratively close the case (technically “look the other way”) in order to allow the government to focus on higher priority cases.

ICE will look at positive and negative factors in your background to determine whether it is a priority for the government to continue with your case. Keep in mind that if you are granted prosecutorial discretion and your case is closed, ICE may retain the ability to reopen your case at a later date. This article will discuss how noncitizens in removal proceedings can request prosecutorial discretion

Who Should Submit an Application for Prosecutorial Discretion

It is important to understand that you should not request prosecutorial discretion if there is not an open removal (deportation) case against you. If you are undocumented but you have not been placed into removal proceedings, you should not reach out to the government or you may risk having a case opened against you.

ICE uses a list of factors to determine whether to exercise prosecutorial discretion and administratively close a deportation case. The government will weigh positive and negative factors such as your criminal history, length of stay in the U.S., and other contributions to society. You can review these positive and negative priority factors in Nolo’s article “How Immigration Enforcement Authorities Decide Whether to Grant Prosecutorial Discretion.”

How to Prepare a Request for Prosecutorial Discretion

If you believe that your case warrants prosecutorial discretion, you will need to prepare a well-written request to be sent to your local ICE office and the local Office of Chief Counsel. To find your local office, visithttp://www.ice.gov/contact/opla/.

There is no official application form for this request. Rather, you should write a letter that indicates in the first sentence that it is a request for prosecutorial discretion. Give a simple but compelling description of why ICE should close your case. To do this, you can use the factors that apply to you as a heading to each section, and include a paragraph describing why you are a good candidate. A typical letter is three to four pages in length.

There are several key factors you should describe in detail in your letter. Include details about your personal immigration history; namely, how you arrived to the U.S. and how long you have resided in the United States. Also emphasize any military service or educational achievements while living in the United States. If you have any health condition that requires you to visit doctors in the U.S., if you are pregnant or nursing, or if you are the primary caregiver for someone who has special needs, also highlight those facts.

In addition, if you know of any legal way for you to remain in the U.S. despite the removal proceedings, mention those things in your letter (i.e. you are eligible for deferred action or cancellation of removal).

Do Not Hide Negative Factors or Criminal History

It is important to be upfront about any negative issues or your criminal history. Do not attempt to hide negative factors or overstate your achievements, as the best practice is to be completely honest in making your request.

If you have a criminal background (such as arrests or convictions), it is best to obtain certified dispositions from the court and provide copies along with your letter. You can also discuss the steps you have taken to resolve the issues such as paying a fine, performing public service, or complying with probation.

Include Supporting Documentation With Your Request

You can provide documents to show that the positive factors outweigh the negative in your case and therefore that your request should be granted. Supporting evidence can include doctor’s records, copies of paid income taxes, letters from friends and family (particularly any friends or family members in high-ranking or well-regarded positions such as a politician, teacher, or clergyperson), copies of diplomas and awards, country condition reports describing what you'd face upon return to your home country, and other documentation to present a compelling case.

There is no limit to the number of supporting documents you can include, but a good rule of thumb is to include only the most important things and to try to keep it to a reasonable size that will fit into a manila envelope.

How An Experienced Immigration Attorney Can Help

A request for prosecutorial discretion can require knowledge about the law that you likely do not have. You may be in a situation where you have a case for relief (such as asylum or cancellation of removal) that is so strong that prosecutorial discretion might actually not be the best course of action. If you are confused or have questions, it is worth seeking help from a qualified immigration attorney. This attorney can advise you whether it is better to request prosecutorial discretion or to apply for another form of relief that will allow you to gain official immigration status in the United States.

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