In the intricate realm of U.S. immigration law, there’s a legal concept called “prosecutorial discretion” (PD). This allows immigration authorities to pause deportation cases. In this piece, we’ll explore PD’s complexities, looking at who might qualify for this short-term shield against deportation, its advantages, and the factors affecting its use.
What is PD in Immigration
It is a crucial tool in U.S. immigration law. It lets immigration agencies like Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, and Customs and Border Protection stop deportation proceedings when a case isn’t a high priority. This often means not sending a Notice to Appear to immigration court when it’s expected.
PD can take different forms. It might involve ICE closing a case administratively or reopening it so a non-citizen can apply for relief from removal. Sometimes, PD is just ICE choosing not to act on a removal order.
Deciding to use PD usually happens case by case, unless directed by executive action or specific program rules, like Deferred Action for Childhood Arrivals.
Why Does the U.S. Government Use Prosecutorial Discretion
The U.S. government uses PD because deporting people is expensive. It involves costs like court proceedings and transportation. With limited resources, it’s not feasible to deport every undocumented person in the U.S.
By using PD and focusing on people who are a bigger threat to national security, border security, and public safety, immigration agencies can use their resources better and focus on more important cases.
The History of Prosecutorial Discretion Immigration Law Policies
The U.S. government’s willingness to use PD has changed over the years, often based on the policies of the sitting president. For example:
In 2014, President Obama told immigration agencies to focus on deporting people who were threats to national and border security and public safety, like those with felony convictions or who tried to cross the border unlawfully.
But President Trump’s administration, starting in 2017, was more aggressive with deportations. They wanted to remove almost any undocumented person ICE or other enforcement officers found.
Under President Biden, there have been efforts to go back to focusing on people who are the biggest risk to the U.S. This includes threats to national security, public safety, and border security. They’ve also discouraged enforcement actions in sensitive places like hospitals and courts.
These policies have faced legal challenges, causing uncertainty and changes in what cases are prioritized for deportation. The current situation keeps changing, with PD decisions depending on each case.
Benefits of PD for Undocumented People
If you’re in deportation proceedings in immigration court and you’re eligible for PD, you might get several benefits:
Temporary Relief: PD can pause your deportation, giving you time before you’re removed.
But getting PD doesn’t automatically give you other immigration benefits, like permission to work. Also, your family members, like spouses and kids, can’t get PD because of your status. They have to qualify for immigration relief to get those benefits.
When Prosecutorial Discretion Might Not Be Best
Even though PD helps delay deportation, it might not always be the best option. Its benefits can be limited, so other strategies might be better. Here are some things to think about:
- PD doesn’t promise other immigration benefits, so it could be better to try for relief from deportation or file an appeal.
- Figuring out the best thing to do can be hard. It’s smart to get help from an immigration attorney who can look at your situation and suggest other options.
- Having a serious criminal history can make you less likely to get PD. ICE looks at your background, so people with a criminal record need to talk to a lawyer about what it means for their immigration case.
- Sometimes, working with a criminal defense lawyer to clear your record can help your chances of getting PD or winning your immigration court case.
Who Can Get Prosecutorial Discretion Immigration Law
In theory, any non-citizen in the U.S. without legal immigration status can ask for PD. But showing good things about your case is important. This might include strong ties to family, a steady job history, being involved in community groups or religious organizations, or taking care of family members with medical needs.
People with a serious criminal history are less likely to get PD. ICE will check your background, so people with a criminal record need to talk to a lawyer about their case and how to clean up their record.
When Can You Ask for Prosecutorial Discretion Immigration Law?
If you’re not in deportation proceedings, talk to an immigration attorney before contacting ICE about PD. But if you’re already facing deportation, you can ask for PD at any point: during immigration court, after you’ve been ordered to leave, or while you’re appealing your case.
Government lawyers are more likely to give you PD earlier in the deportation process to save resources. So when you ask can affect whether you get it.
How to Ask for Prosecutorial Discretion Immigration Law
Each U.S. government agency has its way of asking for PD. If you have a lawyer, they can help you with the process. Usually, it involves getting in touch with ICE’s Office of the Principal Legal Advisor (OPLA). You usually don’t have to pay to ask for PD.
- If you’re representing yourself in immigration court, tell the Immigration Judge and the government lawyer that you want PD. The government lawyer should tell you how to ask.
- There isn’t a standard form for asking for PD, so it’s important to have a lawyer. A good request should have:
- A detailed explanation of why you deserve PD, talking about good things in your case that are more important than the bad things.
- A personal statement explaining why you should get PD, including if you don’t have any criminal convictions in the U.S. or anywhere else.
- Proof of good things in your case, like relationships with U.S. citizens or permanent residents, FBI or state background checks, and letters from police showing you don’t have a criminal record.
- Talking to an experienced immigration attorney can help make sure your PD request is strong and convincing.
What If Your PD Request Is Denied?
If your PD request is denied, you can try again. But before you do, it’s important to figure out why you were denied and fix those things in your next request.
You might also think about getting a lawyer or trying different immigration strategies. Immigration law is complicated, and a good lawyer can help you understand your options and make the best choices.
In summary, prosecutorial discretion is an important part of the U.S. immigration system, giving some undocumented people temporary relief from deportation. But it’s complicated and changes based on policies and individual cases. To make smart decisions about PD or other strategies, it’s crucial to talk to an experienced immigration attorney. Navigating immigration challenges needs careful thought and expert help to get the best results.
