Prosecutorial Discretion: What is it? How to get it?

Posted on by Peter J. Loughlin, Esq. & Thomas W. Goldman, Esq.

Prosecutorial Discretion for Immigrants Facing Deportation


Prosecutorial Discretion for immigrants has been around for many years, however, until the “Morton Memo (June 2011) requesting, qualifying for and being granted such relief was elusive and rarely granted. Earlier published guidelines for the government to follow in determining whether or not to grant PD was cloaked in the uncertainty of terms like “meeting the agency’s enforcement priorities” and similar verbiage. With such ambiguity it is a wonder that prosecutorial discretion was ever granted at all.

DHS, starting with the Morton Memo and subsequent memoranda, has finally provided clearer guidance on the national and local level for immigration attorneys, DHS-ICE counsel, Office if Immigration Litigation (OIL) and other officials to use in requesting, considering and granting PC.

What is Prosecutorial Discretion?

In a nutshell, getting prosecutorial discretion is like having your removal case to move to the bottom of the government’s priority list. When you get PD the government will generally be moving for administrative closure of your case. Although it could also move to terminate proceedings or include some other form of deferred action.

When may Prosecutorial Discretion be considered?

Prosecutorial Discretion may be requested at any stage in the removal process including:

•    Prior to issuance of a Notice to Appear (NTA)
•    After issuance of an NTA
•    Where the respondent is detained
•    Where the respondent is not detained
•    Before the master calendar hearing
•    During or after the master calendar hearing
•    During an individual / merits hearing
•    After an individual / merits hearing
•    Before a final order of removal
•    After a final order of removal
•    While on appeal before the Board of Immigration Appeals (BIA)
•    After a BIA appeal is dismissed
•    During Review in the Circuit Court of Appeal
•    In Federal District Court

And, if your request for prosecutorial discretion was denied at any point in the process, it may be requested again—and reconsidered by the agency. In other words, if your request has merit, don’t give up.

Is Prosecutorial Discretion a good idea in all cases?

Obviously it is not. If your case for relief is strong, supported with evidence and likely to succeed, proceeding with your case may a better strategy. However, it is important to consider all options and the consequences of not prevailing.

In situations where you have a less than optimal case, you should at least consider if PC would achieve some form of acceptable relief, albeit less than perfect.

In weak cases and/or where no relief is available (or on the horizon), PD may be a viable alternative.

Is it possible to obtain an Employment Authorization Document (EAD) with Prosecutorial Discretion?

When the agency’s latest prosecutorial discretion program was launched in June of 2011 there were many reports that EADs would be available in all cases where PD was granted. Unfortunately this has not been the case.

There are rumors that the agency is considering expanding the issuance of EADs with prosecutorial discretion in in the future, but as it stands now, unless there is an independent basis of eligibility for an EAD, for example where a respondent is eligible to apply for cancellation of removal, or adjustment of status, it is not likely an EAD will be issued. On the other hand, if a respondent is eligible to apply for such relief and files prior to being granted PD, he or she will likely be issued an EAD and they would likely be eligible for renewals during the period they are granted prosecutorial discretion / administrative closure.

Incidentally, for asylum cases it would be advisable to time the granting of PD—keeping in mind the provision of 8 CFR 208.7(a)(2) which tolls the 180-day clock for employment authorization.

Who May Grant Prosecutorial Discretion?

•    DHS- Counsel
•    EROs
•    OIL (Office of Immigration Litigation)

BUT, apparently this does not include US Customs and Border Protection (CBP):  Here, it seems to be a moot issue because if CBP issues an NTA, DHS-ICE, etc. would then have the authority to review, consider and grant PD.

 What factors make one ineligible for Prosecutorial Discretion?

According to the Department of Homeland Security the following types of cases should generally be pursued in an accelerated manner and thus not likely a candidate for prosecutorial discretion:

• respondents who are a suspected terrorist or national security risk;
• respondents who have a conviction for a
o    felony or multiple misdemeanors,
o    illegal entry, re-entry, or immigration fraud, or
o    a misdemeanor violation involving-
• violence, threats, or assault,
• sexual abuse or exploitation,
• driving under the influence of alcohol or drugs,
• flight from the scene of an accident,
• drug distribution or trafficking, or
• other significant threat to public safety;
• respondents who are a gang member, human rights violator, or other clear threat to public safety;
• respondents who entered the country illegally or violated the terms of their admission within the last three years;
• respondents who have previously been removed from the country;
• respondents who have been found by an immigration officer or immigration judge to have committed immigration fraud; or
• who otherwise has an egregious record of immigration violations.

Aside from the obvious role of the government in protecting the public from violent criminals, terrorists on predators, it should be noted that of any DUI or drug conviction, including a de minimis marijuana conviction will likely make one ineligible for prosecutorial discretion.

What factors favor one being granted Prosecutorial Discretion?

The following cases are generally not enforcement priorities for the Department of Homeland Security and thus more likely to be considered for prosecutorial discretion on a case-by-case basis. In general, the fore favorable factors present the more likely prosecutorial discretion would be granted.

Cases involving an alien:
• who is a member in good standing of the Coast Guard or Armed Forces of the United States, an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, or the spouse or child of such a member or veteran;
• who is a child, has been in the United States for more than five years, and is either in school or has successfully completed high school (or its equivalent);
• who came to the United States under the age of sixteen, has been in the United States for more than five years, has completed high school (or its equivalent), and is now pursuing or has successfully completed higher education in the United States;
• who is over the age of sixty-five and has been present in the United States for more than ten years;
• who is a victim of domestic violence in the United States, human trafficking to the United States; or of any other serious crime in the United States;
• who has been a lawful permanent resident for ten years or more and has a single, minor conviction for a non-violent offense;
• who suffers from a serious mental or physical condition that would require significant medical or detention resources; or
• who has very long-term presence in the United States, has an immediate family member who is a United States citizen, and has established compelling ties and made compelling
contributions to the United States.

How to request Prosecutorial Discretion?

Although the agency has a program in place to initiate the review cases, immigration attorneys may (and in many cases should) take a proactive approach to formally submit a request for prosecutorial discretion.

Some DHS offices have published specific local rules for requesting PD. It is therefore highly advisable to check first to be certain you comply with these procedures. Be aware that you have the burden of proving equities of your case so you will need to provide ample evidence in in support of being granted prosecutorial discretion.

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One Response to Prosecutorial Discretion: What is it? How to get it?


    I need advise in applying for Prosecutorial Discretion?

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