Which Undocumented Persons Are Helped By Prosecutorial Discretion

An important warning before anything else: If you are an undocumented person in the U.S. who is not in removal (“deportation”) proceedings, you should not contact Immigration and Customs Enforcement (ICE) and request prosecutorial discretion without first talking to an attorney. In addition to refusing to exercise prosecutorial discretion, ICE might also try to remove (deport) you.

This article will discuss who should apply for prosecutorial discretion, and how receiving it might benefit you.

What Is Prosecutorial Discretion?

Under U.S. immigration law, prosecutorial discretion refers to the power that ICE has to influence a deportation case. ICE can exercise its prosecutorial discretion in many different ways. For example, ICE can join you in asking an immigration judge to close your case. Or, ICE might agree to ask an immigration judge to reopen your case so that you can apply for relief from removal. For information about possible defenses against deportation (relief from removal), see “Immigrants in Deportation or Removal Proceedings.”

Prosecutorial discretion “programs” also exist, such as Deferred Action for Childhood Arrivals (DACA) and deferred action for domestic violence victims who are seeking a green card based on a relationship to a lawful permanent resident or U.S. citizen. For information about DACA, see “Deferred Action for Childhood Arrivals (DACA).” And for information about immigration benefits available to domestic violence victims, see “My abusive husband threatens to stop sponsoring me for a green card -- what can I do?

Why Does ICE Exercise Prosecutorial Discretion?

ICE exercises prosecutorial discretion because, like any government agency, ICE has limited resources and needs to use those resources carefully to its meet its priorities. According to ICE, its priorities include:

  • national security

  • border security

  • public safety, and

  • the integrity of the immigration system.

To meet those priorities, ICE may choose to enforce the laws against one undocumented immigrant but not another.

What Does Prosecutorial Discretion Not Do?

By exercising prosecutorial discretion, ICE can quickly close some cases that are less important – and can save time and resources for important cases. But prosecutorial discretion does not mean that everyone who just overstayed a tourist visa, for example, will be able to get their deportation cases closed. There are some ICE employees who do not like the idea of closing any deportation cases at all. And, as noted above, one ICE priority is “integrity of the immigration system,” which could be interpreted to mean that even a person who overstays a visa should be deported.

Thus, actually receiving prosecutorial discretion can be very difficult. Prosecutorial discretion simply does not give everyone who wants it an avenue for relief.

Prosecutorial discretion is also not applied in a “fair” manner. Because ICE has a lot of power when making a prosecutorial discretion decision, it may treat similar cases very differently – one person may receive prosecutorial discretion, while the other is deported.

Benefits of Prosecutorial Discretion

If you are in deportation proceedings in immigration court, the one obvious benefit of prosecutorial discretion is that it might mean that you will not be deported and your immigration court case might be closed temporarily or permanently.

But you will not automatically receive other immigration benefits – such as work authorization – just because you receive prosecutorial discretion. Instead, you will have to independently qualify for any immigration benefit that you request. For example, if you have already applied for asylum before an immigration judge, are awaiting a hearing or decision, but then request and receive a form of prosecutorial discretion called “administrative closure” (meaning the judge takes your case off of the court calendar for months or years) you might be able to get work authorization based on your “pending” (undecided) asylum application.

Why Prosecutorial Discretion Is Not Always the Best Option

Because the benefits of prosecutorial discretion can be limited, it is sometimes better to fight removal in immigration court or file an appeal. Some of the types of relief from removal that might be available to you are described at “Immigrants in Deportation or Removal Proceedings.”

However, figuring out whether or not you can win your immigration case, avoid deportation, and receive immigration benefits can be complicated. Therefore, before deciding whether prosecutorial discretion is right for you, it's a good idea to talk to a well-qualified immigration attorney.

Who Can Get Prosecutorial Discretion?

In theory, anybody can get prosecutorial discretion. However, the more positive factors there are in your case, the better your chances. There are also cases where getting prosecutorial discretion is unlikely – for example where the applicant has a long and serious criminal history. The factors that ICE considers when deciding whether to exercise prosecutorial discretion are available here.

What If My Spouse or Domestic Partner Is a U.S.Citizen or Permanent Resident?

One of the factors that ICE is supposed to consider when making a prosecutorial discretion decision is whether the applicant has “family relationships” in the United States. And the head of the Department of Homeland Security (DHS), the agency that oversees ICE, has said that ICE will consider a “family relationship” to include opposite-sex partners, as well as long-term same-sex partners.

But having a U.S. citizen or permanent resident husband, wife, or domestic partner does not automatically mean that ICE will exercise prosecutorial discretion. Instead, your “family relationship” will be counted as a positive factor and then considered in light of all factors, positive and negative, that are relevant to your case.

What If I Have a Criminal Record?

If you have a criminal record, you should definitely have an attorney evaluate your case. A legal evaluation will help you figure out:

  • whether requesting prosecutorial discretion makes sense

  • how your criminal history might affect your chances of receiving prosecutorial discretion, and

  • whether you should pursue other options beside prosecutorial discretion, such as defending against deportation or filing an appeal.

Your immigration attorney may also be able to suggest ways in which you might – with the help of a criminal defense attorney – be able to “clean” your criminal record to minimize or eliminate negative immigration consequences. A criminal record that has no or few immigration consequences might increase your chances of receiving prosecutorial discretion, or even make it possible for you to win your immigration court case.

But this area of the law is very complicated. So, be careful before believing an attorney who tells you that he or she can make all of your problems go away for a large fee. For more information, see “Choosing, Hiring, or Firing an Immigration Attorney.”

Can I Request Prosecutorial Discretion at Any Time?

As mentioned above, if you are not already in deportation proceedings, you should talk to an immigration attorney before talking to ICE. But if ICE is already trying to deport you, you can ask for prosecutorial discretion at any time – while in front of the immigration judge, after the judge has already ordered your deportation, or while appealing your case.

However, the mere fact that you can request prosecutorial discretion at any time does not mean that you should. See “Why Prosecutorial Discretion Is Not Always the Best Option,” above.

Try to decide soon, however. ICE officials are supposed to exercise prosecutorial discretion as early in the deportation process as possible, to avoid wasting resources. Thus, your chances of receiving prosecutorial discretion may be better the earlier you submit your request.

How to Request Prosecutorial Discretion

Each local ICE office has its own procedures for making prosecutorial discretion requests. If you have an attorney, he or she will know or find out what these procedures are. If you are representing yourself in immigration court, you should tell the judge and the government attorney that you want to request prosecutorial discretion. Then, the government attorney should tell you how to submit a request.

In addition to following local procedures, it is a good idea to provide at least the following documents:

  • a letter explaining:

    • why you believe ICE should exercise prosecutorial discretion in your case

    • how you want ICE to exercise prosecutorial discretion (e.g. join you in asking the immigration judge to close your case), and the main reasons, briefly summarized, why ICE should agree to help you

  • evidence showing the positive factors in your case, such as relationships with U.S. citizens or permanent residents, and

  • an explanation and evidence regarding why ICE should ignore or not give much weight to any negative factors in your case (IF THERE ARE ANY NEGATIVE FACTORS IN YOUR CASE, TALK TO AN ATTORNEY BEFORE ASKING FOR PROSECTORIAL DISCRETION).

The goal is to provide information that is relevant to all of the factors. For example, even if you have no criminal convictions, you would not leave the issue unaddressed. Instead, you would say that you have no criminal convictions and provide proof (e.g. a FBI or state background check or police clearance letters from every city you have lived in). The factors that ICE considers when deciding whether to exercise prosecutorial discretion are available here.

What If My Request for Prosecutorial Discretion Is Denied?

If ICE denies your request for prosecutorial discretion, you can always ask for prosecutorial discretion again, but you would first want to figure out whether there is something that you forgot to tell them last time around. Otherwise, ICE would probably just deny your request again. It might also be a good idea to hire a new or different attorney before making a second request.


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