How Immigration Enforcement Authorities Decide Whether to Grant Prosecutorial Discretion

Ties to your community and U.S. family, length of time in the U.S., education, criminal convictions, and more of the factors that immigration enforcement authorities may consider in deciding whether to proceed with deportation proceedings.

FIRST, TWO IMPORTANT NOTES: If you are considering asking Immigration and Customs Enforcement (ICE) to exercise prosecutorial discretion as a means of helping you stay out of deportation proceedings and remain in the U.S., you should read “Which Undocumented Immigrants Are Helped By Prosecutorial Discretion” before reading this article.

Also, the contents of this article were prepared before the administration of Donald J. Trump. In light of executive orders issued since taking office and an acceleration of ICE raids and enforcement activity, it seems unlikely that a request for prosecutorial discretion will be granted.

What's more, if you are not already in removal (deportation) proceedings, or if there are negative factors in your case (e.g. you have criminal convictions or a history of repeated or serious immigration violations), you should definitely talk to a well-qualified immigration attorney before talking to ICE.

If prosecutorial discretion seems to be right for you, you will want to know how ICE makes its decision. The factors that ICE considers are listed below and are divided into three parts: “positive priority factors,” “negative priority factors,” and “general factors.”

What we call “positive/negative priority factors” are factors that ICE employees are supposed to pay special attention to and will probably, therefore, give greater weight to (i.e. they will give these factors a greater role in the prosecutorial discretion decision). “General factors” are factors that will probably be given less weight (i.e. will play a smaller role in the prosecutorial discretion decision), unless there is something unusual about the case.

ICE Will Consider All Relevant Factors Before Exercising Prosecutorial Discretion

ICE looks at each person’s case individually, considering the “totality of the circumstances,” before deciding whether or not to initiate or continue prosecuting that person in immigration court proceedings. ICE will look at all of the relevant factors, taking into account their individual importance, as well as their overall importance in light of other factors. For example, if you have many positive factors (such as marriage to a U.S. citizen, a degree from a U.S. university, and a long history of volunteer work with learning-disabled students) but one minor negative factor (such as an arrest when you were under 18 years of age), your chances of getting prosecutorial discretion could still be good.

However, it is not always easy to guess what weight or importance ICE will give to any particular “negative factor.” Something that you think is unimportant, such as a shoplifting conviction, might be extremely important to the ICE officer who considers your case and result in a denial of your request for prosecutorial discretion. Therefore, if there are any factors in your case that might be seen as negative, you should talk to well-qualified immigration attorney.

What the Various Factors Literally Mean

How ICE will interpret the factors listed below is not always clear. For example, ICE only recently decided that it would interpret the words “family relationship” (one of the “general factors” listed below) broadly to include not only opposite sex partners, but also long-term same sex partners.

Therefore, you should not be quick to assume that a factor does not apply to you. Instead, you should interpret the factors broadly – with the goal of providing evidence that addresses every factor. 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).

Positive Priority Factors

ICE is more likely to exercise prosecutorial discretion in your immigration case if you:

  • are a veteran or member of the U.S. armed forces

  • have been a U.S. permanent resident for a long time

  • are under 18 years of age or elderly

  • have been living in the U.S. since you were a child

  • are pregnant or nursing

  • are the victim of a serious crime such as domestic violence or trafficking

  • have a serious mental or physical disability, or

  • have serious health problems.

Negative Priority Factors

ICE would be less likely to exercise prosecutorial discretion if you:

  • pose a clear national security risk (e.g. you have associated with or supported terrorists)

  • have a significant criminal record (e.g. multiple arrests or convictions)

  • are or were a gang member

  • are a “threat to public safety” (a broad factor that might cover, for example, drug-related violent crimes or multiple convictions for driving under the influence), or

  • have committed serious immigration law violations (e.g. you illegally reentered the U.S. after being deported or you've committed immigration fraud).

General Factors

You will also want to prepare for ICE to consider other factors in your life, such as:

  • how your case fits within ICE enforcement priorities, including:

    • national security

    • border security

    • public safety, and

    • the integrity of the immigration system

  • your immigration status and history, including:

    • why and how you came to the United States

    • how long you have lived in the U.S. with lawful immigration status

    • how long you have lived in the U.S. without lawful status

    • how old you were when you came to the United States, and

    • your past immigration cases (e.g. immigration court proceedings, immigration applications submitted, application denials, evidence of immigration fraud, past deportation orders)

  • your employment, military service, education, criminal history, and national security, including:

    • education in the United States, including high school and college/university,

    • your (or an immediate relative's) service in the U.S. armed forces (military, reserves, or national guard), especially if you or your relative saw combat

    • any criminal history (arrests, convictions, outstanding warrants), and

    • threats you might pose to national security or public safety

  • your ties to the United States, including:

    • your role in your community (e.g. work as a volunteer, regular participation in an organized religion)

    • whether you have close family members (spouse, domestic partner, children or parents) who are U.S. citizens or permanent residents

    • whether any of your close family members have a serious illness or mental or physical disability

    • whether you are the “primary caretaker” of a disabled person, a child, or a sick relative, and

    • your other family relationships (all relatives living in the U.S., especially those who are U.S. citizens or permanent residents)

  • your relationship with your home country, including:

    • financial and family connections to your home country

    • your home country's financial, political, and social conditions (which you can show by submitting U.S. State Department Human Rights Reports and other official reports and articles), and

    • evidence that you might suffer or be harmed financially, emotionally, or physically if deported to your home country

  • your age and health, including:

    • whether you are young or elderly, in which case your chances of receiving prosecutorial discretion are better

    • whether you or your same or opposite-sex spouse (or domestic partner) is pregnant or breastfeeding, and

    • Whether you or your same or opposite-sex spouse (or domestic partner) has a serious mental or physical disability or illness

  • your deportability and possible eligibility for immigration relief or benefits, including:

    • whether it would be difficult or impossible to deport you (e.g. your home country has no deportation agreement with the United States)

    • whether you are likely to get temporary or permanent immigration status or relief from deportation based on your relationship to a U.S. citizen or permanent resident, and

    • whether you are likely to get temporary or permanent immigration status or relief from deportation based on an asylum application or because you are a victim of (or because you have a “qualifying relationship” with a victim of) domestic violence, trafficking, or other crimes, and

  • whether you or have cooperated with a U.S. law enforcement agency (federal, state, or local).

This is not a list of every possible factor that ICE might take into account in deciding whether to move forward with immigration enforcement activities. If you have other positive factors that help your case, mentioning them to ICE would most likely be a good idea. However, if you are unsure of whether a factor is positive or negative – or if negative factors are present in your case – by all means talk to an attorney.

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