Prosecutorial Discretion Lawyers in Columbus 

Who Can Exercise Prosecutorial Discretion?

ICE, USCIS, and CBP officers, agents, and their supervisors, attorneys, senior staff, deputy directors, and directors have the authority to exercise prosecutorial discretion. Prosecutorial discretion can be exercised by an individual officer for a single foreign national, or it can be exercised by an entire agency as a whole for a certain category of foreign nationals.

What Factors Merit Favorable Prosecutorial Discretion?

Agencies may consider many factors on a case-by-case basis to determine whether a particular case merits favorable prosecutorial discretion. Factors include: 

• The person’s length of presence in the U.S., especially in lawful status;
• The circumstances of arrival in the U.S. and manner of entry, especially if the person entered as a young child;
• Pursuit of education in the U.S., especially high school and college graduates and those pursuing college;
• Whether the person, or the person’s relative, has served in the U.S. military, especially in combat;
• Criminal history
• Immigration history;
• Ties and contributions to the community;
• Ties to home country and conditions in home country;
• Age;
• Whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
• Whether the person is a primary caretaker of a child or disabled person;
• Severe mental or physical illness;
• Whether the person is likely to be granted relief from removal; or
• Whether the person has or is cooperating with federal, state, or local law enforcement authorities.

This list is not exhaustive and no one factor is determinative.

How to Apply for Prosecutorial Discretion

Applying for prosecutorial discretion involves a clear process. Follow these steps to improve your chances of success:

• Determine Eligibility:
  • Review the factors that may influence whether you qualify for prosecutorial discretion, such as length of stay in the U.S., family ties, and criminal history.
• Gather Supporting Documents:
  • Important documents include proof of your presence in the U.S., evidence of community ties, family relationships, and any history of cooperation with law enforcement.
  • You may need to provide medical records if you suffer from severe illness or documents showing a hardship, like the care of a U.S. citizen child or spouse.
• Submit a Request:
  • To apply, submit a formal request to the relevant immigration agency (USCIS, ICE, or CBP). This could involve filing a written request or submitting a form like I-246 (for stays of removal).
  • Provide a personal statement outlining why prosecutorial discretion should be granted in your case.
• Legal Representation:
  • While not required, having an immigration lawyer to help draft the request and ensure the correct documentation is included can improve your chances.
• What to Do If Already in Removal Proceedings:
  • If you’re in removal proceedings, you can file a motion to request prosecutorial discretion or make a request directly to the immigration court or ICE office handling your case.

Recent Changes in Immigration Policies Regarding Prosecutorial Discretion

Prosecutorial discretion policies can change based on new executive orders or shifts in government priorities. Recently, there have been:

• Executive Orders: New policies from the current administration can influence how prosecutorial discretion is granted. These changes could prioritize certain cases based on factors such as family status or humanitarian concerns.
• Policy Memoranda: ICE and USCIS may issue memos that guide which cases are eligible for prosecutorial discretion. These memos help officers make decisions based on current political and legal climates.
  • These changes can increase the chances of favorable discretion for individuals in specific situations, such as young immigrants or those facing medical hardships.

What Happens After Prosecutorial Discretion is Granted

Once prosecutorial discretion is granted, several outcomes are possible:

• Deferred Action: This temporarily halts removal proceedings and allows individuals to stay in the U.S. for a certain period, often allowing work authorization.
• Parole: In some cases, individuals may be granted parole to enter or remain in the U.S. for specific reasons, like humanitarian relief.
• Stay of Removal: A stay of removal postpones or prevents deportation for a certain period.
• These actions don’t grant permanent status but may allow you to stay in the U.S. temporarily while you pursue other immigration remedies.

Legal Protections for Immigrants Seeking Prosecutorial Discretion

If you are seeking prosecutorial discretion, you have legal rights and protections:

• Right to a Fair Review: Immigration authorities must consider your request in good faith. They cannot deny your request based on discriminatory factors such as race or nationality.
• Protection Against Retaliation: If you’re concerned about retaliation from ICE or CBP, you have the right to report unfair actions. You can also seek legal recourse if your case is handled improperly.
• Request for Review: If your request is denied, you may be able to appeal or request a review, especially if you can present new evidence or show that the decision was made incorrectly.

Seeking prosecutorial discretion can be a vital step in resolving your immigration issues, but understanding the process and your rights is essential for success.

Frequently Asked Questions (FAQ) About Prosecutorial Discretion

• What is the difference between prosecutorial discretion and a visa?
  Prosecutorial discretion is a decision by immigration authorities to refrain from enforcing removal or prosecution in a specific case. It does not grant a visa or legal status. Instead, it allows individuals to remain in the U.S. temporarily while they seek other immigration options.
• Can I apply for prosecutorial discretion if I have a criminal record?
  Yes, having a criminal record does not automatically disqualify you from receiving prosecutorial discretion. However, the type and severity of your criminal history will be considered. Non-violent offenses or a history of rehabilitation may improve your chances.
• How long does it take to hear back after requesting prosecutorial discretion?
  Processing times can vary depending on the agency handling your case. On average, you may receive a response in a few weeks to several months. Delays are common due to the volume of cases being processed by USCIS, ICE, or CBP.
• Can prosecutorial discretion be revoked once granted?
  Yes, prosecutorial discretion can be revoked if new information arises, or if the individual violates certain conditions, such as committing a crime. It is important to comply with all laws and court orders during the duration of deferred action or parole.
• What is the likelihood of being granted prosecutorial discretion?
  The likelihood varies based on individual circumstances, such as ties to the U.S., humanitarian factors, or the discretion of the immigration officer handling your case. Working with an experienced immigration attorney can improve your chances.
• Will prosecutorial discretion help me get a green card or permanent residency?
  No, prosecutorial discretion does not directly lead to a green card or permanent residency. However, it may give you the time needed to explore other immigration options or remedies, such as family-based petitions or asylum.

Contact Us for a Consultation

If you have questions about prosecutorial discretion, contact us for a consultation at the nearest office close to you. 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. We will not tire until we get the desired results for you within the bounds of the law.

Get the Help You Need Today
Contact our experienced immigration attorneys for a consultation on your prosecutorial discretion case. Call us now at (888) 915-5057 or fill out our online form.