Prosecutorial Discretion Explained

Prosecutorial discretion generally refers to the authority of a law enforcement officer or agency to determine whether and to what extent the law will be enforced in a particular case. Routine examples include a police officer who declines to arrest someone for a minor offense like jaywalking or a prosecutor who offers a plea bargain in exchange for bringing lesser charges against a defendant.

In an immigration context, prosecutorial discretion could involve a federal authority declining to:

  • Oppose an application for relief that would allow you to stay in the US
  • Pursue a case against you 
  • Arrest you if you don’t meet the current enforcement priorities

Active forms of prosecutorial discretion include cancelling charges against you or deferring your removal even if you have a formal order of deportation. It essentially allows an immigration agent or officer the right to exercise their judgment in a case based on their experience and authority. 

Prosecutorial discretion was originally designed to allow immigration officials to make quick decisions about which individuals were the biggest threat to Homeland Security. Anyone who was in a high-priority deportation category would be removed first while those in lower-priority categories could either have their cases dismissed, deferred, or adjusted.

Transactional Records Access Clearinghouse data indicates that the Obama administration used  prosecutorial discretion to close an estimated 2,400 cases per month between February and June of 2016. During that same period the following year, however, the Trump administration closed fewer than 100 cases per month, suggesting that the use of prosecutorial discretion in immigration removal proceedings is sharply waning.

Under the current administration, all immigration removal cases in the system are generally pursued to completion unless:

  • ICE administrators have confirmed in writing that they don’t intend to pursue your case OR
  • The agency that issued the Notice to Appear has no objection to prosecutorial discretion being exercised.

Who Is Eligible For Prosecutorial Discretion?

Any foreign national without legal status in the U.S. can request prosecutorial discretion, but cases that currently merit special consideration include those involving:

  • Military service members and their immediate relatives, particularly those who qualify for US citizenship under Sections 328 or 329 of the Immigration and Nationality Act.
  • Those who have a viable avenue to obtain permanent legal immigration status. Examples include beneficiaries of a recently-approved Form I-130.
  • Extraordinary humanitarian factors, such as having a US citizen child with a serious illness.
  • Immigrants who are providing a significant law enforcement benefit, such as witness testimony in a criminal proceeding.

If you have a criminal record, leniency will be more difficult unless you work with an attorney who can help you expunge crimes that have immigration consequences.

Contact an Experienced Immigration Attorney

An August 2017 memo circulated by the Office of the Principal Legal Advisor emphasized that prosecutorial discretion was an act of administrative leniency and not a legal right. If you are in removal proceedings, an immigration attorney can help you present a persuasive request to a judge or, if a removal order has already been entered, your attorney can request it on appeal.

At Sánchez-Roig Law Firm, P.A., we have represented clients who acted on their right to seek prosecutorial discretion for their immigration case. We will help you present a request or pursue any other appropriate legal remedy that can prevent your deportation. To schedule a confidential consultation, call 305-373-5385 today.