Why Foreign Nationals May Be Legally Arrested at ICE Appointments After Receiving Prosecutorial Discretion

Prosecutorial discretion is a form of relief offered by ICE to a very limited range of foreign nationals. It applies when a foreign national technically could be removed from the U.S., but ICE has chosen not to proceed with their removal, based on current enforcement priorities or a compelling reason for the foreign national to remain in the U.S.

A foreign national who has received prosecutorial discretion from ICE often will need to go to regular appointments at an ICE office. These may be known as supervised visits. An ICE officer will review their circumstances and any changes that might affect their status. At each visit, ICE has the right to terminate prosecutorial discretion and move forward with deporting the foreign national. As a result, preparing for these appointments can be unnerving because the foreign national may not know whether they will be taken into custody on the spot and removed from the U.S. soon afterward. They do not have a right to appeal a decision to end prosecutorial discretion, but they may be able to seek some types of immigration relief if ICE moves forward with removal proceedings.

Preparing for an ICE Appointment

Some foreign nationals may decide not to attend their ICE appointments. This is a dangerous step to take because this will result in your detention if you are caught, and you may not be able to get released on bond during removal proceedings. However, ICE has been reluctant to arrest foreign nationals who are found in locations that have been traditionally perceived as sanctuaries. These may include churches and hospitals. You will need to make a personal decision about whether attending an ICE appointment is the right strategy for you. Consulting an attorney can help you understand the relative risks of each option.

If you choose to go to the appointment, you should make sure to provide the ICE officer with evidence to show that your situation has not changed and that you still deserve prosecutorial discretion. For example, you will want to show that you have not committed any crimes and that you have contributed to your community. Some foreign nationals will bring family members or friends with them to support their position. At the same time, you should recognize that being arrested and detained is a real possibility, even if your situation has not changed. You will want to make contingency arrangements in case this risk becomes a reality.

Some foreign nationals received prosecutorial discretion during proceedings in immigration court. This means that the government attorney and the immigration judge agreed to close the removal case. If ICE decides to terminate prosecutorial discretion, it may ask the judge to reopen the removal case. You should consult an attorney promptly if this happens so that they can investigate any remaining ways for you to stay in the U.S.

Heightened Risks of Arrest and Removal

There are certain situations in which a foreign national may face a greater risk of arrest and immediate removal from the U.S. if they attend an ICE appointment. If they received prosecutorial discretion relatively late in the process, after the judge already had issued a final order of removal, ICE may deport them immediately if it terminates prosecutorial discretion. Or the officer may give the foreign national a date on which they will need to report to an ICE facility for deportation. Since the judge’s removal order is final, the foreign national has no further options for staying in the U.S. without prosecutorial discretion. If you received prosecutorial discretion under these circumstances, you may want to take greater care to set up contingency plans for children and other family members before going to your ICE appointment. You may even want to pack a bag with essentials or set up contingent accommodations in your home country.

If you are subject to expedited removal, you face an especially high risk of being removed promptly after an ICE appointment. Also, a foreign national who stays beyond their permitted time in the U.S. under the visa waiver program faces an enhanced risk of arrest and removal. In either of these sensitive situations, getting advice from an attorney can make a huge difference in deciding whether to attend an ICE appointment.

Last reviewed October 2024