If you have been granted prosecutorial discretion (PD), it means that Immigration and Customs Enforcement (ICE) decided to stop actively pursuing your removal from the United States. This could be due to the priorities of the current presidential administration or because of compelling circumstances in your own life.Because ICE does not have sufficient resources to detain and deport every undocumented immigrant it apprehends, PD is a means of ensuring that ICE can keep track of certain individuals without actively moving forward with deportation.
One of the common conditions of a grant of PD are routine check-ins, or supervised visits, at an ICE office. These appointments can be as often as monthly to as infrequent as once per year.
At the appointment, you will meet with an official who will go over the details of your case and review any new issues (such as arrests or new requests for immigration relief). ICE will make a determination as to whether to allow you to check-in again at a later date or whether or not it intends to proceed with your removal from the United States.
There is no right to appeal a denial or discontinuation of PD, but you might be eligible for other forms of immigration relief if ICE signals that it will pursue your deportation in the future.
It is important to remember that if you fail to go to your PD check-in, you will be considered a fugitive and will always be a target for immigration enforcement. If you are found, you will be detained and determined to be a flight risk in the future. It is extremely difficult to live this way.
However, the risks of being detained or removed after your supervised visit are much greater since the Trump administration, which has signaled that it plans to move forward with the deportation of a much broader range of individuals in its recent immigration enforcement executive order.
As a result, some individuals have decided to skip their appointments and instead seek sanctuary in local churches willing to provide accommodations to immigrants. ICE will normally not arrest immigrants at "sensitive locations" such as churches, schools, and hospitals (though exceptions have already occurred since Trump took office). Other people have complied with the law and the terms of supervised release, and attended the appointment even if it means risking immediate deportation or detention. This is obviously a very difficult and personal choice.
To help you make this decision, you should first seek legal counsel from an experienced immigration attorney who can guide you through the process and the risks involved in not attending your check-in. Your attorney can also review potential options for relief from deportation that may still be available or can help you to reopen your immigration court case. Even if you have attended a supervised visit with ICE in the past, you may have a much different experience this time due to the change of the administration's priorities.
Second, if you plan to attend your appointment, you should bring evidence that you have been a law-abiding citizen since your last appointment and any documentation showing that the continuation of PD is warranted due to positive factors in your case. You should travel with a group of supportive individuals, if possible. In some cases, it may help to show that you have strong community support for your plea to remain in the United States. For example, one immigrant activist on an order of supervision held a rally outside his PD appointment location and was allowed to remain in the U.S. for now.
Finally, you should make preparations for the worst-case scenario, which could mean being detained or deported depending on the circumstances of your individual case.
If you were granted PD in immigration court, likely it is because the judge and ICE agreed to administratively close your pending deportation case. If ICE notifies you at your PD appointment that it intends to move the court to reopen your case to pursue deportation, you should contact an immigration attorney immediately to discuss your options. You may have already applied for cancellation of removal or asylum or you may want to consider applying for certain types of deportation relief in the future.
Sometimes PD is granted after an immigration judge has already ordered you removed from the United States. If you did not appeal, this is considered a final order of removal and you can be deported at any time if the government decides to end its grant of PD.
If you have a final order of removal, there is a chance that ICE can immediately deport you when you go to your supervised visit. There are reports of several individuals who were deported right away or who were given a “bag and baggage letter” informing them to report to an ICE facility at a later date, essentially turning themselves in to be deported at that time.
In this case, you should make arrangements for the care and custody of any minor children living in the United States by drafting a family preparedness plan, including a power of attorney, and ensuring that trusted friends or family members are aware of any important details in your life before you report to your PD appointment. Additionally, it might be worthwhile for you to have a bag packed or a list of items that you would like family members to pack, an international calling card, and potential arrangements for accommodations in your country of origin.
Additionally, the Trump administration has expanded the class of immigrants which may be subject to expedited removal. This means that if you entered the U.S. unlawfully without being inspected at the border and have been present in the U.S. for less than two years, you could be ordered deported without the chance to see an immigration judge. If you overstayed your welcome on the Visa Waiver Program, you could also be deported without a court hearing.
If you have been granted PD and fit one of these categories, it is especially important that you seek legal advice before your check-in as well as follow the family preparedness advice above.