In the vast web of U. S. immigration laws, there is a concept that is frequently used – prosecutorial discretion or PD. Awareness of the roles of a PD and who stands to benefit from it is important when one is an undocumented person trying to find some solace and not be deported at any given time. In this article, we will discuss prosecutorial discretion in simple detail concerning its definition, origin, and some of the reasons that impact it.
What is Prosecutorial Discretion in the Immigration Context?
In the context of the immigration laws of the United States of America, ‘prosecutorial discretion’ or ‘PD’, is the authority that the executive agencies and offices comprising ICE, USCIS as well as CBP have to exercise. This power empowers these agencies to decide on whether or not to continue or to dismiss deportation cases for any reason.
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.
