Prosecutorial-Discretion

Prosecutorial Discretion

Administrative closure of your deportation proceedings may be available if the government chooses to favorably exercise their Prosecutorial Discretion. Prosecutorial discretion is offered to a person who is not an enforcement priority. While the availability of prosecutorial discretion varies over time as policies tend to change when new leadership takes office, it is important for people in removal proceedings to be aware of prosecutorial discretion as an option.

What is Prosecutorial Discretion?

Prosecutorial discretion refers to the authority of the Department of Homeland Security (“DHS”) to stop working on your immigration case. In the context of removal proceedings, DHS may offer prosecutorial discretion to a person who is not an enforcement priority in order to preserve government resources.

 

If a person is offered prosecutorial discretion, the immigration judge may administratively close removal proceedings. The person is no longer required to attend immigration hearings, can apply for a work permit in certain circumstances, and can move forward in life without the threat of removal.

 

Seeking prosecutorial discretion is a good option for those in removal proceedings who may not have a strong immigration case or available relief but is not a threat to the U.S. and has committed very few immigration violations. It is important to seek help from an experienced immigration to determine if your case may be eligible for prosecutorial discretion.

Prosecutorial Discretion Considerations

NOTE: Prosecutorial discretion has been significantly limited under the Trump administration. The current political climate is such that all persons who are in the U.S. unlawfully are an enforcement priority. This section discusses factors considered by DHS in preceding years to determine whether to extend prosecutorial discretion in a case.

The exercise of prosecutorial discretion is dependent on a variety of factors. Historically, the main priorities for removal are national security, border security and public safety. Because DHS has limited resources, it is important that DHS apply the resources to high priority cases. Exercising prosecutorial discretion allows DHS to close lower priority cases and focus on higher enforcement priorities.

 

If you are undocumented, you may be facing deportation even though you are not a threat to national security, have never committed a crime and have never been previously ordered removed. Consult with an immigration lawyer before seeking prosecutorial discretion from DHS.

Administrative Closure vs. Termination (Dismissal)

One important aspect of prosecutorial discretion is the difference between administrative closure and termination/dismissal of removal proceedings. Administratively closure removes your case from the immigration judge’s active docket. This means that you are still in removal proceedings, but the government will not pursue a deportation case against you. Termination means you no longer have an immigration case in court. The distinction between the two concepts is confusing and can lead to problems if they are not properly understood. For example, in most cases a person cannot file for adjustment of status with the United States Citizenship and Immigration Services (“USCIS”) if their court case is administratively closed, but they can if their case is terminated.

 

A qualified immigration attorney can help you distinguish between administrative closure and termination of removal proceedings. If your case was administratively closed for prosecutorial discretion, an attorney may be able to assist you with re-calendaring the case in immigration court so you can pursue newly available relief.

What if new relief becomes available?

Administrative closure based on prosecutorial discretion offers security for people who have positive factors – they are no longer facing the threat of imminent deportation. As long as you maintain a low enforcement priority you can continue to keep your case closed until a new form of immigration relief becomes available, such as adjustment of status based on an approved petition.

 

If new relief does become available, then an experienced immigration attorney can help you file a motion to re-calendar removal proceedings and help you pursue you case before an immigration judge. In limited circumstances, an immigration attorney may be able to get proceedings terminated so that you can pursue your case with USCIS.

 

While it’s difficult to predict if/when prosecutorial discretion becomes more widely available, it’s important to heed the advice of an experienced immigration attorney who can help determine if your case is eligible for prosecutorial discretion.

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