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Seeking Prosecutorial Discretion before the Immigration Court

October 05, 2021
Hon. Robert Vinikoor (Ret.)

If you or a family member are currently in deportation or removal proceedings, please read below to learn about prosecutorial discretion.

What is Prosecutorial Discretion?

Prosecutorial discretion has been used by law enforcement agencies for decades as a way preserve limited government resources and help to achieve just and fair outcomes in individual cases. Currently, there are 1.3 million cases on the immigration courts’ dockets nationwide and less than 500 immigration judges. This has created a huge backlog of cases, some which can take decades to resolve. Prosecutorial discretion is a way for Immigration and Customs Enforcement (ICE) to focus its resources on certain cases that it thinks are most important. Just as a police department may choose to focus its resources on preventing the most violent crimes instead focusing on traffic violations, ICE can choose to spend its limited resources on cases that it considers to be most pressing.

In this way, ICE can choose not to detain or remove certain people, agree to them being granted a green card if they are eligible, agree to reopen a case where a person has already been ordered deported, or certain other things that may be in the interest of justice or would help focus their resources most effectively.

Changes Under Biden:

Under the Trump administration, prosecutorial discretion was almost entirely eliminated, meaning that anyone, even those who had never committed a crime or had US citizen family members, could be targeted for deportation. This has slowly begun to change under the Biden Administration. In the most recent memo, issued on September 30, 2021, Alejandro Mayorkas, Secretary of the Department of Homeland Security explicitly recognized that the majority of undocumented noncitizens who could be subject to removal have been contributing members of our communities for years.

ICE attorneys can review a variety of humanitarian factors in determining if they think a particular noncitizen merits prosecutorial discretion. For example, they may consider:

  • The noncitizen’s length of residence in the United States.
  • The noncitizens or the noncitizen’s family’s service in the U.S. Military.
  • The noncitizen’s family or community ties in the United States.
  • Circumstances of the noncitizen’s arrival in the United States and the manner of his or her entry.
  • The noncitizen’s prior immigration history.
  • The noncitizen’s work and education history in the United States.
  • The noncitizen’s status as a victim, witness, or plaintiff in civil or criminal proceedings and
  • Compelling humanitarian factors present in the noncitizen’s case (including on the part of the noncitizen’s close family members). This can include, for example, if the noncitizen or a family member has a serious health condition, is elderly, pregnant, or a minor; is the primary caregiver to someone suffering from serious physical or mental illness; is a victim of domestic violence, human trafficking, or other serious crime; or came to the United States as a young child and has since lived in the United States continuously.

Every case is different:

As stated above, there are different forms of prosecutorial discretion, some of which may or may not help your specific situation. If you have a case pending before the immigration court, you should consult with an attorney to determine whether seeking prosecutorial discretion is in your best interest.  Additionally, the application of prosecutorial discretion, unfortunately, has varied all over the country, so what has happened in Chicago is not necessarily what is happening elsewhere. Therefore, a consultation with an experienced immigration attorney is recommended.  Please contact the attorneys of Minsky, McCormick & Hallagan at 312-427-6163 and schedule a consultation if you are under removal proceedings and believe that you may qualify for prosecutorial discretion.

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