March 10,2022
Attorney/Abogado Timothy J. Brenner
Uncategorized
What is Prosecutorial Discretion and What Could it Mean for You?
If you have a pending immigration case and have heard recent news or rumors, you may have heard the term prosecutorial discretion (“PD”) used with increased frequency.
In essence, the government can decide whether or how to enforce, or not to enforce, the law against an individual. The government has recently issued memorandums outlining enforcement priorities, or those groups of individuals who are higher on the government’s list for using its resources to prosecute immigration cases. If you are not one of the government’s enforcement priorities, you may be eligible to request PD for your case. By offering PD as an option, the government benefits by clearing an increasingly high immigration court backlog of cases. The government may choose to essentially drop your immigration case to focus its time and energy on another case with a higher priority for removal.
PD can come in many forms and can be considered at various stages throughout the removal process. Some examples of PD could include the government agreeing to continuances of hearings, stipulating to bond amounts in detained cases, joining in motions filed with the immigration court, and agreeing to dismiss or administratively close cases before the immigration court. The government considers each case individually when deciding whether to offer PD. In determining whether to exercise PD, the government may consider such factors as:
-The noncitizen’s length of residence in the United States;
– The noncitizen’s or the noncitizen’s family’s service in the U.S. military;
– The noncitizen’s family or community ties in the United States;
– The noncitizen’s work and education history in the United States;
-Compelling humanitarian factors present in the noncitizen’s case (including on the part of the noncitizen’s close family members), including:
-Serious medical condition,
-Age,
-Pregnancy,
-Status as a child, and
-Status as a primary caregiver of a seriously ill relative in the United States.
These are just some examples of many factors taken into consideration for a PD request, and some or all of these may or may not apply to your own case.
There may be certain advantages and disadvantages to an offer or acceptance of PD, to be carefully considered by the individual requesting PD. Although not a complete list, here are some pros and cons of requesting or accepting PD:
PROS:
-Your case could become closed/inactive with the immigration court
-You may be able to pursue certain petitions through USCIS and eventually secure a pathway to residency or citizenship
-You may be able to maintain and renew legal work authorization depending on the type of PD offered/accepted
CONS:
-You may lose legal work authorization depending on the type of PD offered/accepted
-Your case may be re-opened in the future
-You may not have a clear pathway to residency or citizenship
-You may not be able to travel outside of the United States or you may need to seek authorization to leave the country to travel
There are many factors to consider when requesting or accepting PD. Since there are different forms of PD, it is also important to assess on a case-by-case basis. Is PD right for you? Schedule a consultation with one of our experienced attorneys today to explore your options.