Prosecutorial Discretion

Criminal and Immigration Lawyer

Prosecutorial discretion is an administrative tool that allows an alien that has been ordered deported, or has been placed in deportation proceedings, to remain in the United States for a certain period of time due to an urgent humanitarian reason.

Prosecutorial discretion can be sought at any stage of the deportation proceeding, even after the alien exhausted all his appeals remedies. It can be granted for a definite or indefinite time. ICE generally requires an individual that has been granted prosecutorial discretion to report periodically to a deportation officer and remain available for any interview, background check and other forms of cooperation.

Factors used in deciding Prosecutorial Discretion applications

When deciding whether favorable prosecutorial discretion should be exercised in a certain case, ICE deportation officers consider all the specific factors, including, but not limited to:

  • the current immigration enforcement priorities;
  • the person's length of stay in the U.S., with particular consideration given to the amount of time spent in lawful status;
  • the circumstances of the person's arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
  • the person level of education in the U.S., with particular consideration given to those who have graduated from an American high school or have successfully pursued advanced degrees at a U.S. legitimate university;
  • whether the person has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
  • the person's criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  • the person's immigration history, including any prior deportation ordered, outstanding order of removal, prior denial of status, or evidence of fraud;
  • whether the person poses a national security or public safety concern;
  • the person's ties and contributions to the community, including family relationships;
  • the person's ties to his or her home country;
  • The political and social conditions of the alien’s country;
  • the person's age, with particular consideration given to minors and elderly people;
  • whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
  • whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
  • whether the person or the person's spouse is pregnant or nursing;
  • whether the person or the person's spouse suffers from severe mental or physical illness;
  • Whether the person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
  • whether the person is likely to be granted temporary or permanent status or other relief from removal;
  • whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

The following positive factors should prompt particular care and consideration:

  • veterans and members of the U.S. armed forces;
  • long-time lawful permanent residents;
  • minors and elderly individuals;
  • individuals present in the United States since childhood;
  • pregnant or nursing women;
  • victims of domestic violence; trafficking, or other serious crimes;
  • individuals who suffer from a serious mental or physical disability; and
  • individuals with serious health conditions.

Prosecutorial discretion can be granted in different forms, such as administrative closure, termination of deportation proceedings, grant of a temporary stay or removal, etc. If you have been placed in removal proceedings or have an outstanding deportation order, speak to a criminal immigration lawyer to see if you can request prosecutorial discretion and remain in the United States.

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