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How Prosecutorial Discretion Works in Immigration Cases
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How Immigration Enforcement Discretion Works.
Prosecutorial discretion is the authority immigration enforcement agencies have to decide whether and how to pursue enforcement action in a particular case. It can be exercised at different stages of the immigration process, including decisions about whether to begin removal proceedings, pursue or agree to dismissal, or take other enforcement actions.
The options available vary based on the agency involved, the stage of the case, and current immigration policies. A favorable exercise of prosecutorial discretion may change how the government handles a case, but it does not necessarily end the matter permanently.
Prosecutorial discretion is also different from immigration relief. It generally does not, by itself, give you lawful immigration status, a green card, or permanent protection from removal. Its effect depends on the specific action the government takes.
Immigration authorities may consider the circumstances of the case as a whole when deciding whether to exercise prosecutorial discretion. Relevant factors may include:
Family and community ties: Established family relationships and other ties to the United States.
Length of residence: How long you have lived in the United States.
Criminal history: Arrests, convictions, the seriousness of any offenses, and other public safety concerns.
Immigration history: Prior removal orders, immigration violations, previous applications, or other immigration matters.
Humanitarian circumstances: Age, health conditions, caregiving responsibilities, or other humanitarian concerns.
Military or public service: Military service or other relevant service and contributions.
Other case-specific circumstances: Additional facts that may be relevant to the government’s enforcement decision.
No single factor determines the outcome or guarantees that prosecutorial discretion will be granted. The weight given to different circumstances may also change as immigration enforcement policies change.
Prosecutorial discretion can take different forms depending on where a person is in the immigration process. Examples may include:
Choosing whether to begin enforcement proceedings: Immigration authorities may decide not to initiate certain enforcement actions.
Agreeing to dismissal of removal proceedings: In some cases before an immigration court, the government may agree to or request dismissal of the proceedings.
Deferred action: The government may defer enforcement action against a person for a period of time.
Decisions about detention or enforcement: Discretion may affect certain decisions involving arrest, detention, release, or other enforcement actions.
Other case-specific actions: Other forms of discretion may be available based on the agency handling the matter and the circumstances of the case.
These outcomes have different legal and practical effects. For example, dismissal of removal proceedings is different from deferred action, so it is important to understand what a particular exercise of discretion would mean for your case.
There is no single process for requesting prosecutorial discretion. The steps depend on who is handling the case, whether removal proceedings have started, and the action you are asking the government to take.
The process may involve:
Determine who is handling your case: Identify whether the matter is being handled by ICE, USCIS, or another component of the Department of Homeland Security.
Identify what you are requesting: Clearly state the action you are asking the government to take, such as declining a particular enforcement action or agreeing to dismissal of removal proceedings.
Gather supporting information: Relevant documents may address family and community ties, length of residence, humanitarian circumstances, criminal and immigration history, or other facts supporting the request.
Submit the request: Follow the procedures that apply to the agency or office handling your matter.
Wait for the government’s decision: Immigration authorities review the request based on the circumstances of the case and applicable enforcement policies. Approval is not guaranteed.
Follow the next steps in your case: If discretion is exercised, what happens next depends on the action granted. If the request is declined, the immigration matter generally continues through the applicable process.
There is no universal processing time for prosecutorial discretion requests. Procedures and enforcement policies can change, so the process should be considered based on the rules and guidance in effect at the time.
What happens after a decision depends on the action requested and where you are in the immigration process.
If prosecutorial discretion is granted, the government may decline a particular enforcement action, agree to dismissal of removal proceedings, grant deferred action when available, or take another discretionary action. The specific effect will depend on what was granted and does not necessarily resolve other immigration issues.
If prosecutorial discretion is denied, your immigration matter generally continues through the applicable process. For example, existing removal proceedings may continue. A denial does not necessarily determine whether you qualify for asylum, cancellation of removal, adjustment of status, or another form of immigration relief.
The decision may affect only certain parts of your immigration case. Any pending proceedings, applications, or filing requirements may still need to be addressed.
Consider speaking with an immigration attorney if you are unsure whether prosecutorial discretion may apply to your case, how to request it, or which agency handles the request. Legal guidance may be especially useful if you are in removal proceedings, have a prior removal order, have a criminal or immigration history, or have humanitarian circumstances that may affect the decision.
An attorney can help you understand the forms of discretion that may be available, prepare a request, and explain how the outcome could affect other immigration matters. If you have questions about your options, consider contacting Andrew T. Thomas, Attorneys at Law.
No. Prosecutorial discretion generally does not provide lawful immigration status. Depending on the action taken, the government may choose not to pursue certain enforcement measures, but this is different from receiving an immigration status or benefit.
Prosecutorial discretion may be available after removal proceedings have started. What can be requested and how the request is handled depend on the stage of the proceedings and the government agency involved.
Prosecutorial discretion does not automatically provide employment authorization. Whether you may qualify for a work permit depends on the particular form of discretion granted or another basis for employment authorization.
Yes. Some exercises of prosecutorial discretion may be reconsidered. Changes in your circumstances, enforcement policies, or other relevant factors may affect how the government handles your case in the future.
A previous denial does not necessarily prevent another request. A later request may be appropriate if your circumstances have changed, new information is available, or relevant government policies have changed.
