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.

This article will discuss who could potentially apply for a temporary remedy against deportation known as "prosecutorial discretion" or PD. It's not a true "status" in the U.S., but in the classic PD case, a sort of legal limbo. A person granted prosecutorial discretion enjoys only a few immigration benefits, such as potentially a work permit, and has no path to permanent residency; but will at least not be deported for now.

Warning: 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 try to request prosecutorial discretion without first talking to an attorney. In addition to refusing to exercise prosecutorial discretion, ICE might try to remove (deport) you.

What Is Prosecutorial Discretion?

Under U.S. immigration law, prosecutorial discretion (PD) refers to the power that U.S. immigration agencies (ICE, as well as U.S. Citizenship and Immigration Services or USCIS, and Customs and Border Protection (CBP)) have to discontinue working on a deportation case. Sometimes it simply means they don't issue a Notice to Appear (NTA) in immigration court when they normally could.

An agency can exercise its PD in many different ways. For example, ICE can join you in asking an immigration judge to administratively 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; or to simply not act on an existing removal order. (For information about possible defenses against deportation, see Immigrants in Deportation or Removal Proceedings.)

The relevant government agency would decide on a case-by-case basis whether or not to exercise PD. One exception would be if it has been directed by an executive action to grant or refuse PD. Also, PD opportunities can be authorized through a specific program with a separate application process, such as Deferred Action for Childhood Arrivals (DACA).

Why Does the U.S. Government Exercise PD at All?

The U.S. government exercises PD because it has limited resources and needs to use those carefully to its meet its priorities. It literally does not have the budget to deport more than approximately 5% of the undocumented population in the U.S., according to 2021 estimates. Deporting a person involves costly court proceedings, transportation, and more.

By exercising PD; that is, choosing to overlook some undocumented persons in favor of going after others; ICE can quickly close cases that are less important and save time and resources for important cases.

How Willing Has the U.S. Government Been to Grant Prosecutorial Discretion in Recent Years?

A person's chances of benefitting from prosecutorial discretion depend a lot on current ICE policy, driven particularly by the U.S. president.

For example, in 2014, U.S. President Obama directed ICE and other immigration agencies to prioritize deportation activities against people who are threats to national security, border security, and public safety (those who have committed felonies, attempted to cross the U.S. border unlawfully, terrorists).

Then, these enforcement priorities were all but done away with after President Donald Trump took office in 2017 and directed U.S. officials to deport virtually any undocumented person ICE or other enforcement personnel came in contact with.

The Biden Administration is attempting to reinstitute a focus on undocumented people who pose the greatest risk to the United States. In a February 18, 2021 ICE Memo containing interim guidance on civil enforcement priorities, it reaffirmed the Obama-era top priorities of threats to national security, border security, and public safety. It also said that enforcement outside those priorities will need prior approval, emphasizing that sensitive locations such as hospitals and courts are not appropriate for immigration enforcement.

Following that, however, a federal judge struck down these priorities, saying that they were too broad, and that U.S. border agents should be able to go after migrants in "overlooked categories." Then an appeals court judge enjoined (put a hold on) most parts of that ruling.

Further muddying the waters, the Biden Administration issued revised priorities in September, 2021, which are meant to take effect in late November of 2021. It continues the focus on threats to national security and public safety, but eliminates the preapproval process for ICE agents taking enforcement actions. It also ceases to spotlight people with aggravated felonies or gang-related convictions as high priorities. As for low priorities, it mentions people who:

  • are of advanced or tender age
  • have spent a long time in the United States
  • have a mental condition that could have contributed to the criminal conduct, or a physical or mental condition requiring care or treatment
  • are victims of crime or victims, witnesses, or parties to legal proceedings
  • have family in the United States whom they provide or care for
  • might be eligible for humanitarian protection or other immigration
    relief
  • are in the military or other public service, or their immediate family members are
  • have been rehabilitated since a crime, or the conviction has been vacated or expunged, or it's been a long time since that conviction.

How these enforcement priorities will all shake out remains to be seen, particularly since court appeals are all but inevitable.

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. Nor will your family members (spouse and children) receive PD through you.

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. Before deciding what path is right for you, it's wise 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. Examples include family ties, a solid employment history, membership in community groups or places of worship, caregiving for family members with medical issues, and the like.

An applicant who has any sort of serious criminal history is unlikely to receive a PD grant. 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 U.S. government agency 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. Often they involve starting with an email to ICE's Office of the Principal Legal Advisor (OPLA).

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, there is no form to fill out (another reason why it's wise to hire an attorney). A well-prepared request will include:

  • a detailed statement explaining why you deserve PD, summarizing and describing how the positive factors outweigh the negative factors in your case
  • a personal statement explaining why you deserve PD and ideally stating that you have no criminal convictions in the U.S. or elsewhere
  • evidence showing positive factors in your case, such as relationships with U.S. citizens or permanent residents, and
  • 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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