Application of Prosecutorial Discretion in Ohio

At the Ohio AILA Chapter monthly meeting in December 2011 with Ohio Immigration lawyers, Immigration and Customs Enforcement (“ICE”) Deputy Chief Counsel Victoria Christian discussed how the Cleveland office is applying prosecutorial discretion for respondents in removal proceedings. The Department of Homeland Security (“DHS”) will consider exercising prosecutorial discretion only in the most sympathetic humanitarian cases. Top priority cases, high enforcement cases, and even borderline cases, will not be considered for prosecutorial discretion and will proceed to hearing. Cases involving detention are still a top priority for DHS and are not considered for prosecutorial discretion.

The form of prosecutorial discretion being applied in most cases is to stop removal proceedings by administrative closure. When a case is administratively closed, it is not dismissed or terminated. Rather, the case is postponed indefinitely. However, DHS will consider termination without prejudice and remanding to USCIS or motions to reopen in cases where a person becomes eligible for an immigration benefit, such as adjustment of status to permanent residence due to an approved I-130 family-based petition. A respondent may request a continuance in cases where DHS has not yet made a determination, and DHS may be willing to agree to a continuance if the respondent could potentially qualify for administrative closure.

Another form is deferred action, which puts the case on an indefinite delay. If a respondent has a pending relief application such as asylum or non-LPR cancellation, that person may not want to administratively close their case because the relief application may have merit. In this situation, DHS may consider a deferred action request if the respondent agrees to accept a final order of removal. DHS will not consider deferred action requests without a final order of removal.

DHS is conducting an affirmative review of every case before the immigration court regarding prosecutorial discretion in the following priority order. New NTA’s in non-detained cases are being reviewed by the duty attorney before filing with the court. All individual hearings scheduled within the next six months are being reviewed. All master hearings scheduled within the next six months are being reviewed. Cases before the BIA are not currently being reviewed because DHS states it does not have enough time. Once DHS determines that a case is being reviewed for prosecutorial discretion, DHS will contact the respondent’s attorney to request more information or to make an offer to administratively close the case. The offer to administratively close should be responded to promptly since this is a one-time offer.

If you have questions about prosecutorial discretion or removal proceedings, contact us for a free consultation at the nearest office close to you. We will not tire until we get the desired results for you within the bounds of the law. We represent clients nationwide in various matters including green cards and permanent residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, investor visas, PERM applications, and many more. Contact us for a free initial consultation.