Immigration and Customs Enforcement (ICE) made headlines in 2011 when the agency announced that it would exercise prosecutorial discretion during deportation proceedings in cases it considered a low priority. This announcement means that now there may be some hope for those who are in the process of being deported but do not qualify for any of the remedies typically used to stop deportation, such as cancellation of removal and asylum.
Prosecutorial discretion means that ICE’s attorney will choose not to continue with an individual’s removal from the United States. Prosecutorial discretion is not mandatory. It is up to ICE to decide which persons will receive prosecutorial discretion. Those who are given prosecutorial discretion do not receive employment authorization or any kind of immigration status. It simply means that the deportation proceedings against them are stopped.
The government has written a list of positive and negative factors in explaining which cases might be considered low priority. If a person meets some or many of the positive factors, ICE may determine that their case is a low priority. Alternately, if too many negative factors are present ICE may say the individual cannot be given deferred action.
These factors were designed to reflect the agency’s enforcement priorities. Those priorities are national security, border security, public safety and the integrity of the immigration system. These priorities are what ICE wants to focus on the most.
A few of the positive factors are:
- Living in the U.S. for a long time
- Very young age or very old age
- Close family members in the U.S., such as children or spouses
- You have a severe physical or mental illness or you are taking care of a family member who has a severe illness
- You take care of a child
- You are the victim of domestic violence, human trafficking and other crimes
Some of the negative factors are:
- Serious criminal record
- A history of immigration violations
These factors and others will help ICE make its decision. It is still possible for someone who demonstrates many good factors to be denied prosecutorial discretion.
Also in 2011, the President of the United States issued a directive to ICE asking them to review the many thousands of currently pending deportation cases and to drop the low priority ones. As such, ICE’s attorneys may by themselves choose to exercise prosecutorial discretion in a case. Alternately a person in removal proceedings can ask ICE to grant them prosecutorial discretion.
Asking for prosecutorial discretion is thought of as a last resort for persons already in deportation. Never, ever turn yourself in to immigration authorities just for the purpose of asking for prosecutorial discretion. If you are in the process of deportation and would like to learn more about prosecutorial discretion, please contact an immigration attorney.