In the complex world of U.S. immigration laws, there’s a concept called prosecutorial discretion (PD) that comes up often. Understanding what PD is and who can benefit from it is important for undocumented individuals seeking relief from deportation. In this article, we will explain prosecutorial discretion in U.S. immigration in simple terms, covering its definition, origin, and some factors that influence it.
What is Prosecutorial Discretion in the Immigration Context?
Prosecutorial discretion refers to the authority of immigration officials to decide whether to pursue deportation or enforcement actions against an individual. This can include decisions on whether to initiate removal proceedings, grant relief from deportation, or allow individuals to remain in the U.S. temporarily. The Biden administration has emphasized the use of prosecutorial discretion as a means to implement more humane immigration policies, particularly for vulnerable populations.
Application for Nigerians
In light of recent political instability and security issues in Nigeria, there have been calls for the U.S. government to extend protections such as Temporary Protected Status (TPS) or Deferred Enforced Departure (DED) for Nigerian nationals in the United States. These measures would provide legal protections against deportation and allow individuals to apply for work authorization. The Department of Homeland Security (DHS) has been urged to utilize prosecutorial discretion actively to limit enforcement against Nigerians affected by these crises.
Recent Developments
- Biden Administration Policies: The Biden administration’s enforcement priorities, established in 2021, categorize individuals based on their threat level to national security, border security, or public safety. Those not fitting these categories may be eligible for prosecutorial discretion. However, historical data shows that ICE has sometimes acted outside these guidelines, leading to arrests of individuals who were not considered enforcement priorities.
- Case Studies: There have been specific instances where prosecutorial discretion was granted to Nigerian nationals facing deportation after adverse decisions on their immigration status. For example, clients who had previously entered the U.S. legally but faced challenges due to denial of their immigration petitions have successfully received discretionary relief.
How Does PD Work?
PD can manifest in several ways, depending on the circumstances of the case. For instance, ICE may opt to ask an immigration judge to administratively close a case, effectively putting it on hold. Alternatively, ICE might choose not to act on an existing removal order. The key here is that PD involves making a case a lower priority for removal due to specific factors.
Why Does the U.S. Government Use Prosecutorial Discretion?
The U.S. government employs prosecutorial discretion due to its limited resources and the need to allocate them judiciously. The sheer volume of undocumented individuals in the U.S. surpasses the government’s capacity for deportation. Deportation proceedings involve substantial costs, encompassing court proceedings, transportation, and more.
By selectively applying PD, immigration agencies can expedite the resolution of less critical cases, thereby conserving time and resources for cases that pose a more substantial threat to U.S. society.
The Role of Policy in Prosecutorial Discretion
The likelihood of benefiting from prosecutorial discretion is heavily influenced by the current policy, often guided by the U.S. president. For instance, during the Obama administration, ICE prioritized deporting individuals posing threats to national security, border security, and public safety. This included individuals with felony convictions and those attempting unlawful border crossings.
In contrast, President Donald Trump’s administration adopted a more aggressive stance, advocating for the deportation of virtually any undocumented person encountered by immigration enforcement personnel.
Under the Biden Administration, there has been an attempt to return to prioritizing those deemed the greatest risk to the United States. This approach maintains a focus on threats to national security and public safety, while also considering individuals with specific characteristics, such as those of advanced age or those with family in the United States.
However, the situation is fluid, with various court challenges affecting the enforcement priorities. It remains to be seen how these policies will ultimately evolve.
Benefits of Obtaining PD for Undocumented Persons
If you find yourself in deportation proceedings and successfully apply for PD, you gain a reprieve from deportation. Your immigration court case is put on hold, offering a chance to stay in the U.S. temporarily. However, it’s essential to note that receiving PD does not automatically grant other immigration benefits, such as work authorization, for you or your family members.
When PD Makes Sense
While PD can provide relief from immediate deportation, it may not always be the best option. Depending on your situation, it might be more advantageous to fight removal in immigration court or file an appeal. Deciding the right path can be complex, and consulting with a qualified immigration attorney is crucial.
Eligibility for PD
In theory, any non-citizen in the U.S. without lawful immigration status can apply for PD. However, approval hinges on presenting convincing positive factors in your case. These factors can include strong family ties, a stable employment history, community involvement, caregiving responsibilities, and more. However, individuals with serious criminal histories are less likely to receive PD.
The Role of Criminal History
If you have a criminal record, it’s essential to have an attorney assess your case. Your attorney can help you determine whether requesting PD is a viable option, how your criminal history might affect your chances, and whether pursuing other avenues, such as deportation defense or an appeal, is a better strategy.
The Timing of PD Requests
The timing of your PD request can significantly impact its success. If you’re already in deportation proceedings, you can request PD at any stage, even while in front of an immigration judge. However, ICE is more likely to grant PD earlier in the process to conserve resources, making early requests more favorable.
How to Request PD
Each U.S. government agency involved in immigration enforcement has its procedures for PD requests. If you have an attorney, they will guide you through this process. If you’re representing yourself, inform the immigration judge and government attorney of your intention to request PD. There’s no specific form to fill out, but a well-prepared request should include:
- A detailed statement explaining why you deserve PD, highlighting positive factors in your case.
- A personal statement addressing your eligibility for PD and ideally confirming a clean criminal record.
- Evidence supporting your case, such as proof of relationships with U.S. citizens or permanent residents.
- FBI or state background checks and police clearance letters from all relevant jurisdictions.
What if Your PD Request is Denied?
If your initial PD request is denied, you can submit another request, even after receiving an order for removal. Before doing so, consider what information or factors may have been overlooked in your previous request. It’s also advisable to consult a different attorney if needed.
In summary, prosecutorial discretion is crucial in the U.S. immigration system, offering hope for undocumented individuals facing deportation, but understanding its intricacies and seeking legal counsel is vital due to the complexity and ever-changing nature of immigration law.
How does prosecutorial discretion impact the lives of Nigerians in the U.S
Prosecutorial discretion significantly impacts the lives of Nigerians in the U.S. by influencing their immigration status and potential deportation outcomes. Here are key aspects of how this discretion affects them:
Relief from Deportation
Temporary Protections
Prosecutorial discretion allows immigration authorities to prioritize certain cases, providing relief to individuals who may otherwise face deportation. For Nigerians, this can mean the difference between remaining in the U.S. and being returned to a country facing political instability and violence. The Biden administration has indicated a willingness to use prosecutorial discretion to protect vulnerable populations, including Nigerians, particularly in light of recent crises in Nigeria and neighboring Niger.
Case Management
Immigration agencies like ICE (U.S. Immigration and Customs Enforcement) can choose to administratively close cases or refrain from pursuing removal orders against individuals who meet specific criteria, such as strong family ties or community involvement. This flexibility can offer a temporary reprieve from deportation for many Nigerians facing removal proceedings.
Influence of Policy Changes
Shifting Enforcement Priorities
The application of prosecutorial discretion is heavily influenced by the current administration’s policies. Under previous administrations, such as Trump’s, there was a more aggressive approach toward deportations, affecting many undocumented immigrants, including Nigerians. In contrast, the Biden administration has sought to focus on individuals deemed a threat to national security or public safety while considering humanitarian factors.
Court Challenges and Uncertainty
Recent court rulings have challenged the guidelines surrounding prosecutorial discretion, creating uncertainty for many immigrants. For instance, a federal district court ruling in 2022 limited the executive branch’s ability to set priorities for immigration enforcement, potentially increasing the risk of deportation for some Nigerians if enforcement becomes more aggressive.
Community Impact
Social Stability
The exercise of prosecutorial discretion can contribute to social stability within Nigerian communities in the U.S. By allowing individuals to remain in the country, it helps maintain family unity and provides opportunities for economic participation through work authorization if granted alongside discretionary relief.
Psychological Effects
Living under the threat of deportation can create significant psychological stress for Nigerians facing uncertain immigration statuses. The possibility of relief through prosecutorial discretion offers hope but also highlights the precarious nature of their situation, as changes in policy or enforcement priorities can abruptly alter their circumstances.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make navigating prosecutorial discretion in U.S. immigration straightforward and successful. Whether you’re applying for a Temporary Protected Status (TPS) or U Visa, we handle every step—from evaluating your eligibility to preparing your application and gathering the required documents.
Our immigration lawyer consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process, coordinating with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients with Prosecutorial Discretion in U.S. Immigration. Call us today at +234 812 5505 986 to learn how we can assist you.
