IMMIGRATION AND POLICY: PROSECUTORIAL DISCRETION

IMMIGRATION AND POLICY: PROSECUTORIAL DISCRETION: Posted by Norka M. Schell, Esq. What is a prosecutorial discretion for immigration purpose? If a person is detained by the the Depar...

PROSECUTORIAL DISCRETION

Posted by Norka M. Schell, Esq.  

What is a prosecutorial discretion for immigration purpose?

If a person is detained by the the Department of Homeland Security, or is placed in removal proceedings, his or her lawyer may request that the agency or an officer with enforcement authority to decide whether to enforce a law in the particular case.  In its exercise of prosecutorial discretion, the government may decline to institute, administrative close the proceedings and/or may grant the person deferred action status, allowing the person to remain in the United States for a certain period of time, possibly with employment authorization. It is important to know that the government's prosecutorial discretion does not allow it to grant permanent or lawful immigration status, however, to persons who are otherwise ineligible.  

Last December, Immigration and Customs Enforcement (ICE) in Baltimore launched a pilot program to review which will review 5,000 non-detained cases currently on it docket to determine which ones should be administratively closed as per instructions from the ICE Office of the Principal Legal Advisor. The pilot program is scheduled to last until January 12, 2012. Given the quick pace of review, ICE Baltimore encourages the attorneys to file requests for administrative closure. 

The factors that the government uses in determining whether to exercise prosecutorial discretion favorably for a foreign national are these cases involving foreign national: 

• who is a member in good standing of the Coast Guard or Armed Forced of the United States, an honorably discharged veteran of the Cost Guard or Armed Forced of the United States, or the spouse or children of such a member or veteran;
• who is a child, has been in the United States for more than five years, and is either in school or has successfully completed high school (or its equivalent);
• who came to the United States under the age of sixteen, has been in the United States for more than five years, has completed high school (or its equivalent), and is now pursuing or has successfully completed higher education in the United State;
• who is over the age of sixty-five and has been present in the United States for more than ten years;
• who is victim of domestic violence in the United States, human trafficking  to the United States; or of any other serious crimes in the United States;
• who has been a lawful permanent resident for ten years or more and has a single, minor conviction for a non-violent offense;
• who suffers from a serious mental or physical condition that would require significant medical or detention resources; or
• who has very long-term presence in the United States, has an immediate family member who is a United States citizen, and has established compelling ties and made compelling contributions to the United States.

An Immigration Judge can and must terminate proceedings when he or she finds that the person is not removable as charged. If proceedings are terminated, these individual could be given deferred action status while waiting for their priority dates to become current, as which allow them to work and qualify for certain public benefit until they are eligible to adjust status.

For more information about about prosecutorial discretion please visit our website at http://www.lawschell.com/ or call our office at (212) 564-1589.