Prosecutorial Discretion

If you are an undocumented person in the U.S. who is not in removal (“deportation”) proceedings, you should not contact Immigration and Customs Enforcement (ICE) and request prosecutorial discretion without first talking to an attorney. In addition to refusing to exercise prosecutorial discretion, ICE might also try to remove (deport) you.

What Is Prosecutorial Discretion?

Under U.S. immigration law, 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.

Prosecutorial discretion “programs” also 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.

Why Does ICE Exercise Prosecutorial Discretion?

ICE exercises prosecutorial discretion because, like any government agency, ICE has limited resources and needs to use those resources carefully to its meet its priorities. According to ICE, its priorities include:

  • national security
  • border security
  • public safety, and
  • the integrity of the immigration system.

To meet those priorities, ICE may choose to enforce the laws against one undocumented immigrant but not another.

What Does Prosecutorial Discretion Not 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. There are some ICE employees who do not like the idea of closing any deportation cases at all. And, as noted above, one ICE priority is “integrity of the immigration system,” which could be interpreted to mean that even a person who overstays a visa should be deported.

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.

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.

But you will not automatically receive other immigration benefits – such as work authorization – just because you receive prosecutorial discretion. Instead, you will have to independently qualify for any immigration benefit that you request. For example, if you have already applied for asylum before an immigration judge, are awaiting a hearing or decision, but then request and receive a form of prosecutorial discretion called “administrative closure” (meaning the judge takes your case off of the court calendar for months or years) you might be able to get work authorization based on your “pending” (undecided) asylum application.

Why Prosecutorial Discretion Is Not Always the Best Option

Because the benefits of prosecutorial discretion can be limited, it is sometimes better to fight removal in immigration court or file an appeal. However, figuring out whether or not you can win your immigration case, avoid deportation, and receive immigration benefits can be complicated. Therefore, before deciding whether prosecutorial discretion is right for you, it’s a good idea to talk to a well-qualified 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. There are also cases where getting prosecutorial discretion is unlikely – for example where the applicant has a long and serious criminal history. Here is a non-exhaustive list of the factors that ICE considers when deciding whether to exercise prosecutorial discretion:

Positive Priority Factors

ICE is more likely to exercise prosecutorial discretion in your immigration case if you:

  • are a veteran or member of the U.S. armed forces
  • have been a U.S. permanent resident for a long time
  • are under 18 years of age or elderly
  • have been living in the U.S. since you were a child
  • are pregnant or nursing
  • are the victim of a serious crime such as domestic violence or trafficking
  • have a serious mental or physical disability, or
  • have serious health problems.

Negative Priority Factors

ICE would be less likely to exercise prosecutorial discretion if you:

  • pose a clear national security risk (e.g. you have associated with or supported terrorists)
  • have a significant criminal record (e.g. multiple arrests or convictions)
  • are or were a gang member
  • are a “threat to public safety” (a broad factor that might cover, for example, drug-related violent crimes or multiple convictions for driving under the influence), or
  • have committed serious immigration law violations (e.g. you illegally reentered the U.S. after being deported or you’ve committed immigration fraud).

General Factors

You will also want to prepare for ICE to consider other factors in your life, such as:

  • how your case fits within ICE enforcement priorities, including:
    • national security
    • border security
    • public safety, and
    • the integrity of the immigration system
  • your immigration status and history, including:
    • why and how you came to the United States
    • how long you have lived in the U.S. with lawful immigration status
    • how long you have lived in the U.S. without lawful status
    • how old you were when you came to the United States, and
    • your past immigration cases (e.g. immigration court proceedings, immigration applications submitted, application denials, evidence of immigration fraud, past deportation orders)
  • your employment, military service, education, criminal history, and national security, including:
    • education in the United States, including high school and college/university,
    • your (or an immediate relative’s) service in the U.S. armed forces (military, reserves, or national guard), especially if you or your relative saw combat
    • any criminal history (arrests, convictions, outstanding warrants), and
    • threats you might pose to national security or public safety
  • your ties to the United States, including:
    • your role in your community (e.g. work as a volunteer, regular participation in an organized religion)
    • whether you have close family members (spouse, domestic partner, children or parents) who are U.S. citizens or permanent residents
    • whether any of your close family members have a serious illness or mental or physical disability
    • whether you are the “primary caretaker” of a disabled person, a child, or a sick relative, and
    • your other family relationships (allrelatives living in the U.S., especially those who are U.S. citizens or permanent residents)
  • your relationship with your home country, including:
    • financial and family connections to your home country
    • your home country’s financial, political, and social conditions (which you can show by submitting U.S. State Department Human Rights Reports and other official reports and articles), and
    • evidence that you might suffer or be harmed financially, emotionally, or physically if deported to your home country
  • your age and health, including:
    • whether you are young or elderly, in which case your chances of receiving prosecutorial discretion are better
    • whether you or your same or opposite-sex spouse (or domestic partner) is pregnant or breastfeeding, and
    • Whether you or your same or opposite-sex spouse (or domestic partner) has a serious mental or physical disability or illness
  • your deportability and possible eligibility for immigration relief or benefits, including:
    • whether it would be difficult or impossible to deport you (e.g. your home country has no deportation agreement with the United States)
    • whether you are likely to get temporary or permanent immigration status or relief from deportation based on your relationship to a U.S. citizen or permanent resident, and
    • whether you are likely to get temporary or permanent immigration status or relief from deportation based on an asylum application or because you are a victim of (or because you have a “qualifying relationship” with a victim of) domestic violence, trafficking, or other crimes, and
  • whether you or have cooperated with a U.S. law enforcement agency (federal, state, or local).