Prosecutorial Discretion in Deportation Proceedings
Immigration and Customs Enforcement (ICE) has the discretion to stop pursuing the deportation of a certain foreign national who technically could be deported from the U.S. This might involve asking the immigration judge to close your removal case or to reopen a case after a removal order so that you can seek further relief. Prosecutorial discretion usually occurs on an individual basis. However, some immigration programs, such as DACA, and certain executive orders have mandated prosecutorial discretion for a category of foreign nationals.
Requesting prosecutorial discretion is a very risky step to take if you are not already in removal proceedings. You should not contact immigration enforcement authorities and ask for prosecutorial discretion unless you consult an attorney. A denial of prosecutorial discretion could result in removal proceedings against you. Prosecutorial discretion does not confer any benefits other than avoiding deportation, and you will not receive permission to work in the U.S. unless you qualify for a work permit independently. Thus, immigration attorneys often advise foreign nationals to seek prosecutorial discretion only as a last resort if they do not have good defenses to removal or grounds for an appeal.
Individuals not already in removal proceedings should not request prosecutorial discretion without first consulting an attorney.
Eligibility for Prosecutorial Discretion
The prosecutorial discretion path is open to any foreign national who does not have legal status in the U.S. ICE considers a broad range of factors in determining whether it may be appropriate in a certain case, and you should review those factors before determining whether to request it. If you have a criminal record, you may be unlikely to receive prosecutorial discretion, but you can ask an attorney about whether it may be an option. Sometimes a foreign national can expunge certain crimes with immigration consequences so that they do not undermine their prospects of getting prosecutorial discretion. (Expunging convictions may help you win a removal case outright as well.)
Justifications for Prosecutorial Discretion
ICE must set priorities in allocating its resources, so using prosecutorial discretion can help it focus on cases that affect national security and public safety. For example, under the administration of President Barack Obama, ICE offered prosecutorial discretion to most foreign nationals who did not have a criminal record or a history of terrorism, who had not been ordered removed already, and who did not attempt to cross the border unlawfully. However, the Trump administration favored a much more limited approach to prosecutorial discretion. The Biden administration has sought to once again expand prosecutorial discretion and focus enforcement efforts, but this expansion was blocked by a federal court in August 2021. Government policies and ICE policies in this area are subject to change.
Requesting Prosecutorial Discretion
You can request prosecutorial discretion at any time. If you are already in removal proceedings, you can ask the immigration judge for it, or you can ask for it on appeal after the judge has entered a removal order. A request for prosecutorial discretion may be more persuasive earlier in the process, since it will save ICE the effort of preparing for the hearing before the immigration judge.
An individual without their own attorney may ask the immigration judge or the government attorney about the correct procedure for requesting prosecutorial discretion.
If you are represented by an attorney, your attorney will handle the request for prosecutorial discretion. If you do not have an attorney, you can tell the immigration judge and the ICE attorney that you want prosecutorial discretion, and the ICE attorney will advise you on how to request it. This will involve providing a statement that describes why you qualify for special treatment and explains why adverse factors should not be weighed heavily. Your request should include evidence supporting your statement, such as documentation of strong relationships with U.S. citizens or green card holders.
You can ask for prosecutorial discretion a second time if you have been denied, but it is unlikely that the outcome will be different unless your situation has changed substantially.