In 2011, the U.S. Immigration and Customs Enforcement (ICE) announced that it would not deport certain “low-priority” individuals in an effort to conserve the government’s limited resources.
This goal is accomplished through the use of prosecutorial discretion, which is the power ICE and other enforcement agencies have to decide which individuals to deport, and which immigration violations to enforce.
Prosecutorial discretion applies to a wide range of enforcement decisions, so the type of discretion exercised will depend on what stage your case is in. In removal proceedings, an exercise of prosecutorial discretion can mean that your case is dismissed – or closed – even if a final order of removal has been issued.
How to Request Prosecutorial Discretion
In order to receive a favorable grant of prosecutorial discretion, you must first submit a written request with supporting documents. ICE has the authority to review and close cases on their own, but most individuals in removal proceedings must seek prosecutorial discretion in a formal letter.
The more positive factors in your case, the more likely that ICE will classify your case as “low priority.” Each case is examined on an individual basis and is subject a balancing of different factors. Some examples are listed below, but they are by no means an exhaustive list.
Amount of time lawfully spent in the country
Entry into the country as a child
Pursuit or completion of high school or higher education
Past or present service in the U.S. military
U.S. citizen or permanent resident family members, with special consideration given to spouses
Strong ties to the community
Cooperation with Federal or state legal enforcement
Criminal history, especially serious or repeated offenses
Posing a national security risk or public safety concern
Long record of immigration violation, such as illegal re-entries or immigration fraud
When to Request Prosecutorial Discretion
Even if you have a strong case for prosecutorial discretion, it is important to consult with an experienced immigration attorney at JRQ & Associates before proceeding. A grant of prosecutorial discretion will end removal proceedings, but also comes with certain risks. A successful request for prosecutorial discretion will result in your case being closed without further change in your immigration status. This means that your presence in the U.S. is still considered unlawful, but that ICE has decided not to proceed with deportation at this time. There may be better options for fighting deportation, such as filing an appeal or defending against the existing removal proceedings.