Basics on Prosecutorial Discretion

May 5, 2016 | Deportation

As a Miami immigration lawyer, I have helped several clients get relief from deportation by requesting prosecutorial discretion. Before I answer some frequently asked questions, I’d like to extend an important warning: If you are an undocumented person in the U.S. who is not in currently removal (“deportation”) proceedings, you should not contact Immigration and Customs Enforcement (ICE) and request prosecutorial discretion without first talking to Miami immigration lawyer. This may cause ICE to try to initiate deportation (removal) proceedings against you.

What Is Prosecutorial Discretion?
Prosecutorial discretion refers to the power that ICE has to influence a deportation case. ICE can exercise its prosecutorial discretion in many different ways. For example, ICE can join you in asking an immigration judge to close your case. Or, ICE might agree to ask an immigration judge to reopen your case so that you can apply for relief from removal. If you have any questions about this, you may want to speak with a Miami immigration lawyer.

Do prosecutorial discretion programs exist?
Yes. Prosecutorial discretion “programs” exist, such as Deferred Action for Childhood Arrivals (DACA) and deferred action for domestic violence victims who are seeking a green card based on a relationship to a lawful permanent resident or U.S. citizen. Again, if you have any questions in regard to this, you may want to speak with a Miami immigration lawyer.

Prosecutorial discretion – What it can, and cannot do.
By exercising prosecutorial discretion, ICE can quickly close some cases that are less important – and can save time and resources for important cases. But prosecutorial discretion does not mean that everyone who just overstayed a tourist visa, for example, will be able to get their deportation cases closed.

Thus, actually receiving prosecutorial discretion can be very difficult. Prosecutorial discretion simply does not give everyone who wants it an avenue for relief.

Prosecutorial discretion is also not applied in a “fair” manner. Because ICE has a lot of power when making a prosecutorial discretion decision, it may treat similar cases very differently – one person may receive prosecutorial discretion, while the other is deported. Again, if you have any questions in regard to this, you may want to speak with a Miami immigration lawyer.

What are the benefits of prosecutorial discretion?
If you are in deportation proceedings in immigration court, the one obvious benefit of prosecutorial discretion is that it might mean that you will not be deported and your immigration court case might be closed temporarily or permanently. If you have any questions in regard this, you may want to speak with a Miami immigration attorney.

Who Can Get Prosecutorial Discretion?
In theory, anybody can get prosecutorial discretion. However, the more positive factors there are in your case, the better your chances. If you have had a long and serious criminal history, for example, it is unlikely that you will qualify for prosecutorial discretion. Regardless, you should speak with your Miami immigration lawyer to discuss your options.

What If I Have a Criminal Record?
If you have a criminal record, you should definitely have an attorney evaluate your case. A legal evaluation will help you figure out:

  • whether requesting prosecutorial discretion makes sense
  • how your criminal history might affect your chances of receiving prosecutorial discretion, and
  • whether you should pursue other options beside prosecutorial discretion, such as defending against deportation or filing an appeal.

Your Miami immigration lawyer may also be able to suggest ways in which you might – with the help of a criminal defense attorney – be able to “clean” your criminal record to minimize or eliminate negative immigration consequences. A criminal record that has no or few immigration consequences might increase your chances of receiving prosecutorial discretion, or even make it possible for you to win your immigration court case.

What happens if my request for prosecutorial discretion is denied?
If ICE denies your request for prosecutorial discretion, you can always ask for prosecutorial discretion again, but you would first want to figure out whether there is something that you forgot to tell them last time around. Otherwise, ICE would probably just deny your request again.

If you have would like to learn more about prosecutorial discretion, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com.