Explaining Prosecutorial Discretion In Removal Proceedings
“In its basic terms, prosecutorial discretion is the authority of an agency charged with enforcing a law to decide to what extent to enforce the law against a particular individual.”[1] In the immigration context, Immigration Customs and Enforcement (“ICE”) exercises prosecutorial discretion favorably by choosing not to enforce the immigration laws against a particular individual. Prosecutorial discretion is born out of the realization that the government simply does not have the resources necessary to deport every individual present in the United States in violation of the immigration laws.[2] In choosing whom to prosecute, the government proceeds according to enforcement priorities. For example, individuals who either recently arrived in the U.S., have criminal records, or outstanding removal orders are generally enforcement priorities and will not receive a favorable exercise of prosecutorial discretion.[3] When an individual is in removal proceedings, a favorable exercise of prosecutorial discretion often results in the administrative closure of that person’s case. This often (but not always) occurs after the person’s attorney has made a formal request in writing with the Department of Homeland Security. If the parties reach an agreement regarding prosecutorial discretion, a joint motion to administratively close the person’s removal case is submitted to the immigration judge. Once the court grants the motion, the case is administratively closed and the matter is taken off the court’s calendar.
Receiving prosecutorial discretion in removal proceedings can be a great benefit to the person who receives it. First, since the case is no longer on the court’s calendar, the person does not have to come back to court for the time being. This will save the person the time and hassle of having to come to court every several months. Of course, the person will also save money by not having to pay an attorney to represent them in court. Second, the government, by agreeing to exercise discretion essentially agrees (at least for the time being) not to pursue a deportation case against the individual. This can relieve a great deal of stress and anxiety, especially where the person has only a slim chance of qualifying for long term immigration relief before the immigration court. Third, if the person has work authorization at the time the case is administratively closed, that individual should be able to continue to renew his or her work permit even though the case has been administratively closed with the court. Finally, either side has the right to ask the court to put the case back on the calendar at some point in the future. That means, if in the future, the law or the individual’s factual circumstances change such that their chances of obtaining long-term immigration relief are stronger than before, the individual can simply file a motion to re-calendar their case and pursue that application.
As noted above, there are undoubtedly advantages to pursuing prosecutorial discretion in removal proceedings and having your case administratively closed. However, there are also some disadvantages. First, it is important to keep in mind that prosecutorial discretion does not by itself confer lawful permanent residency. In other words, this does not get you a green card and all of the privileges that come with having one. For example, administrative closure (by itself) does not allow you leave the country. Many people in removal proceedings have been separated from family members in their native countries for years and so this can be a tremendous disadvantage. Second, remember that either side has the right to ask the court to place the case back on the calendar. This means the government can, at any time, ask the court to re-calendar the case and resume removal proceedings against the person. This will likely happen if the person is arrested and convicted of a crime, say for example driving under the influence. But it can happen for any reason and at any time. This uncertainty – or legal limbo — can be unsettling. The bottom line is that each individual’s case is different and a decision as to how to proceed should only be made after thoroughly analyzing the pros and cons of each option. Certainly, this is a conversation all people in removal proceedings should be having with their attorneys.
[1] Memo, Morton, Director ICE, “Exercising Prosecutorial Discretion,” Policy No. 10075.1, FEA No. 306-112-0026 (June 17, 2011) available online at: http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf
[2] Id.
[3] See Memo, Johnson, Secretary of Department of Homeland Security, “Polices for the Apprehension, Detention and Removal Of Undocumented Immigrants,” (November 21, 2014) available online at: http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf
According to the recent Johnson memo, enforcement priority will be given to those individuals who pose a threat to national security, border security and public safety (“Priority 1”), certain misdemeanants and “new immigration violators” (“Priority 2”), and “other immigration violators” (“Priority 3”), which includes individuals who have received final orders of removal after January 1, 2014.
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