Which Undocumented Persons Can Be Helped By Prosecutorial Discretion

Under U.S. immigration law, prosecutorial discretion (PD) refers to the power that ICE has to discontinue working on a deportation case.

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 could potentially apply for prosecutorial discretion. Recognize, however, that after the Trump administration entered in 2017, the chances of someone benefiting from this remedy went down considerably; effectively declaring nearly everyone who is in the U.S. unlawfully to be a priority for deportation. Because the Biden Harris administration has ordered that enforcement priorities be reestablished, PD is likely to become a viable option once again.

What Is Prosecutorial Discretion (PD)?

Under U.S. immigration law, prosecutorial discretion (PD) refers to the power that ICE has to discontinue working on a deportation case. ICE can exercise its PD 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, see Immigrants in Deportation or Removal Proceedings.

ICE decides on a case-by-case basis whether or not to exercise PD in a particular case unless directed by an executive action or if PD is authorized through a specific program with a separate application process, such as Deferred Action for Childhood Arrivals (DACA).

Why Does ICE Sometimes Exercise PD?

ICE exercises PD because, like any government agency, ICE has limited resources and needs to use those resources carefully to its meet its priorities. According to ICE, main priority for deportation includes national security, border security, and public safety. By exercising PD, ICE can quickly close some cases that are less important—and can save time and resources for important cases.

In November 2014, U.S. President Barack Obama directed ICE and other immigration agencies to prioritize its deportation activities according to the following categories:

  1. threats to national security, border security, and public safety (those who have committed felonies, attempted to cross the U.S. border unlawfully, terrorists)
  2. those who have committed misdemeanors and "new immigrants" (those who entered the U.S. prior to 2014), and
  3. those already ordered removed (deported) from the United States.
As a result, President Obama directed ICE and other immigration agencies to offer PD to immigrants in removal proceedings who are not in the above three enforcement priorities.
However, these enforcement priorities were changed (and the relevant memos rescinded) after President Donald Trump took office and issued thePresidential Executive Order: Enhancing Public Safety in the Interior of the United States.”
This order directed U.S. officials to put at the top of the priority list for removal people who have been convicted, charged, or even committed acts constituting any criminal offense; who have engaged in fraud or willful misrepresentation in connection with any official or government matter; who have abused any public benefits program; or who otherwise, in the judgment of an immigration officer, pose a risk to public safety or national security.

Clearly, the concept of who is a criminal has been hugely expanded, and this priority list could sweep in anyone who has, for instance, used a false Social Security Number. What's more, a follow-up implementation memo by DHS Secretary Kelly states that "The exercise of prosecutorial discretion with regard to any alien who is subject to arrest, criminal prosecution, or removal in accordance with law shall be made on a case-by-case basis in consultation with the head of the field office component, where appropriate, of CBP, ICE, or USCIS that initiated or will initiate the enforcement action" and "prosecutorial discretion shall not be exercised in a manner that exempts or excludes a specified class or category of aliens from enforcement of the immigration laws."

In other words, no one can whose case isn't compelling for some reason so unique that this memo couldn't articulate it can have any expectation of receiving prosecutorial discretion under the new regime.

Benefits of Obtaining PD

If you are in deportation proceedings in immigration court, and are able to apply for PD, the obvious benefit is that it might mean that you will not be deported and your immigration court case will be closed at least temporarily.

But you will not automatically receive other immigration benefits—such as work authorization—just because you receive PD.

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 (IJ), are awaiting a hearing or decision, but then request and receive a form of PD called “administrative closure” (meaning the IJ 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 PD Is Not Always the Best Option

Because the benefits of PD 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 PD is right for you, it's a good idea to talk to a well-qualified immigration attorney.

Who Can Get PD?

In theory, any non-citizen of the U.S. who lacks lawful immigration status can get PD. However, you will want to show some convincing, positive factors in your case. An applicant who has any sort of serious criminal history is unlikely to receive a grant of PD. The factors that ICE considers when deciding whether to exercise PD are available here.

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 PD makes sense
  • how your criminal history might affect your chances of receiving PD, and
  • whether you should pursue other options beside PD, such as defending against deportation or filing an appeal.

Your immigration attorney might 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 PD, or even make it possible for you to win your immigration court case.

Can I Request PD 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 PD at any time—while in front of the IJ, after the judge has already ordered your deportation, or while appealing your case.

However, the government attorney in your case will be more likely to grant PD before needing to prepare for your individual hearing before the IJ. ICE officials are supposed to exercise PD as early in the deportation process as possible, to avoid wasting resources. Thus, your chances of receiving PD might be better the earlier you submit your request.

How to Request PD

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

Ordinarily, you will submit a statement explaining why you deserve PD and evidence showing the positive factors in your case, such as relationships with U.S. citizens or permanent residents, and explaining any negative factors in your case. For example, even if you have no criminal convictions, you should state that you have no criminal convictions and provide proof (such as an FBI or state background check or police clearance letters from every city you have lived in).

What If My Request for PD Is Denied?

If ICE denies your request for PD, you can always ask for PD again, but you would first want to figure out whether there is something that you forgot to tell it last time. 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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