When to Seek Prosecutorial Discretion

Philadelphia Immigration Lawyers at Surin & Griffin, P.C. Assist Clients in the Naturalization Process.Philadelphia immigration attorneys can advise immigrants when and under what circumstances to request prosecutorial discretion when facing deportation proceedings. Prosecutorial discretion is the theory that the person or entity prosecuting the undocumented individual has the discretion to withdraw prosecution. This can be requested in certain circumstances where the government may not have enough resources or interest to continue to make that individual’s deportation matter a high priority in the agency.

Although prosecutorial discretion is more difficult to obtain under the current administration, it is still possible. Any undocumented person can request prosecutorial discretion from the Immigration and Customs Enforcement (ICE) agency, but an immigration attorney should evaluate the likelihood of success before making a request for this relief from the government.

Speak to a Qualified Immigration Attorney

Anyone not currently in removal proceedings, or who has not received notice from the government that he or she could be deported, should not contact the federal government to request prosecutorial discretion before contacting an attorney. In certain situations, it may be advisable but in most situations a person who is not currently being deported should not request relief since they could be refused that relief and instead they may be placed in deportation proceedings.

The primary reason why prosecutorial discretion is granted is when ICE has a lack of resources to pursue the case or the undocumented individual is not a “high priority” case. In 2014, President Barack Obama set forth standards for ICE to follow when considering which undocumented individuals to place into deportation proceedings. In that memorandum, federal immigration and border agencies were directed to focus their resources on undocumented individuals who were:

  • Threats to national security, border security or public safety. These are people who were identified as felons, terrorists, or they were caught crossing the U.S. border illegally.
  • Those who committed misdemeanors and were in the country as of January 1, 2014.
  • Individuals who were previously ordered to be removed or deported from the United States.

In 2017, President Trump expanded these priorities to include people who were charged or convicted of any type of criminal offense, even if it did not constitute a misdemeanor. Additionally, individuals can now be deported for engaging in a fraud or willful misrepresentation in connection with any official or government matter. They can face deportation for having abused any public benefits program or who, in the judgement of an immigration officer, are a risk to national security or public safety. These guidelines are less clear than the 2014 guidelines since they leave much discretion to immigration officials.

Philadelphia Immigration Lawyers at Surin & Griffin, P.C. Advise Clients on Requesting Prosecutorial Discretion

The Philadelphia immigration lawyers at Surin & Griffin, P.C. can help individuals who are in removal proceedings decide what is the best strategy for fighting their case. Contact us at 215-925-4435 to discuss your options today or contact us online. We serve clients throughout the greater Philadelphia region.