Generally, prosecutorial discretion (often referred to as “PD”) is the discretion or latitude that a law enforcement agency has in deciding to what extent the law should be enforced against an individual. In the context of immigration law, the relevant law enforcement agency is the Department of Homeland Security (“DHS”). Making a request for PD means asking DHS to exercise its discretion in deciding not to enforce immigration laws against an individual. An individual would merit a favorable exercise of discretion by demonstrating that his/her case should be considered a low-priority case for removal/deportation. DHS would then weigh all relevant factors and equities in the individual’s case, and decide if it is worth spending the U.S. government’s limited resources in pursuing removal or deportation. If DHS is deciding to exercise PD in a person’s case, the department may decide: not to initiate removal proceedings against that person; to administratively close or terminate existing removal proceedings; to stay the execution of existing removal orders issued in a person’s case; or to agree to, or not contest, motions to reopen and/or terminate a person’s removal proceedings.

All U.S. government departments and agencies have limited resources, thus DHS exercises prosecutorial discretion to make sure that its limited resources are best used in meeting the department’s priorities. DHS priorities broadly include the interest of national security, border security, public safety, and maintaining the integrity of the U.S. immigration system. To make sure these priorities are met, DHS may enforce immigration laws against certain individuals, but decide not to exercise its authority in lower-priority immigration cases.

In order to help alleviate the seriously backlogged immigration court dockets, DHS may independently conduct reviews of immigration cases, and administratively close low-priority cases. This means that cases deemed to be low-priority will be removed from the immigration court’s active docket. Additionally, individuals can make a request for PD to the appropriate DHS agency, asking that the relevant agency actively review his/her case to see if it falls into this “low-priority” category.

The determination of whether or not to exercise prosecutorial discretion is extremely fact-specific, and is entirely up to the discretion of the person reviewing each individual case. Although members of the Executive Branch have issued guidelines for identifying low-priority removal cases, there are no statutory requirements that an individual can meet to ensure that PD will be exercised in his/her case. Thus, it is important to work with an experienced immigration attorney who can help you present your argument for PD in the most effective way possible.
It is rarely advisable to pursue PD with DHS if you are not already in removal or deportation proceedings. Make sure to consult with an attorney before deciding to pursue PD if you are not currently in removal/deportation proceedings. Not only can DHS decline to exercise PD, but requesting PD in these circumstances may trigger the appropriate DHS agency to initiate removal/deportation proceedings against you.

If an individual is in removal or deportation proceedings in an immigration court, one basic benefit of requesting PD is that a grant might mean that DHS will not attempt to deport you, and your case in immigration court might be temporarily or permanently closed. For individuals who are not eligible for any form of immigration relief or those who have a low likelihood of having relief granted, a DHS decision to exercise PD typically allows the individual to remain lawfully in the United States. However, it is important to keep in mind that PD usually means DHS is administratively closing your case and agreeing to take the case off the immigration court’s active calendar. PD does not confer a legal benefit upon a person, on its own. A person whose removal proceedings are administratively closed may have his/her case re-calendared (placed back on the immigration court’s docket) at any time by either party, as the individual is still technically “in removal proceedings.” Similarly, where a person’s removal proceedings have been administratively closed, any applications submitted in the case remain pending yet unadjudicated.

PD, on its own, does not confer eligibility for immigration benefits. An individual must independently qualify for any immigration benefits requested; PD does not provide independent eligibility for benefits. For example, if a person in removal proceedings files an asylum application with the immigration judge and the application is still pending, then the case is administratively closed pursuant to an exercise of PD and the immigration judge takes the case of his/her calendar indefinitely, that applicant may be eligible for work authorization based on the filing of the currently pending asylum application. However, if a person currently has family in his/her country of origin, receiving a grant of PD in his/her case does not allow that person to petition for his/her family members.

Because receiving an exercise of PD confers only limited immigration benefits, it is important to consult with an experienced immigration attorney to determine if PD is your best option. For some individuals, pursuing relief in removal proceedings or fighting for relief on appeal may be a more desirable result than accepting DHS’s offer to exercise PD.

In deciding whether an exercise of PD is appropriate for a given person, immigration officers, agents, and attorneys have been instructed to consider all relevant factors in a person’s case, including, but not limited to:

  1. The civil immigration enforcement priorities of the relevant DHS agency
  2. The person’s length of presence in the U.S., with particular consideration given to presence while the person was in lawful status
  3. The circumstances of the person’s arrival in the U.S. and the manner of his/her entry, particularly in instances where the person came to the U.S. as a young child
  4. The person’s pursuit of education in the U.S., with particular consideration given to those who have graduated from or are attending a U.S. high school or have successfully pursued or are pursuing a college or advanced degrees at a legitimate institution of higher education in the U.S.
  5. Whether the person or his/her immediate relative has served in the U.S. military, with particular consideration given to those who served the U.S. in combat
  6. The person’s criminal history (including any arrests, prior convictions, or outstanding arrest warrants)
  7. The person’s immigration history, including any prior instances of removal, outstanding orders of removal, prior denial of immigration status, or evidence of fraud or misrepresentation
  8. Whether the person poses a national security or public safety concern
  9. The person’s ties and contributions to the community, including family relationships
  10. The person’s ties to their country of origin and the conditions in that country
  11. The person’s age, with particular consideration given to minors and the elderly
  12. Whether the person has a U.S. citizen or lawful permanent resident spouse, child, or
  13. Whether the person is the primary caretaker of a person with a mental or physical
    disability, minor, or seriously ill relative
  14. Whether the person or the person’s spouse is pregnant or nursing
  15. Whether the person or the person’s spouse suffers from severe mental or physical
  16. Whether the person’s nationality makes it unlikely that removal will be successfully
  17. Whether the person is likely to be granted temporary or permanent status or any
    other relief from removal, including those eligible for relief as beneficiaries of a
    petition by a U.S. citizen or permanent resident relative, those seeking asylum, or
    victims of domestic violence/human trafficking/other crimes; and
  18. Whether the person is currently cooperating or has cooperated with federal, state or
    local law enforcement authorities.

DHS will weigh these factors under the totality of the circumstances, but this list is not exhaustive and no single factor is determinative of whether or not PD will be exercised. However, the more of these factors in your favor, the more likely that DHS will grant PD in your case. Another important factor to consider is the stage of removal proceedings in the particular case. Since an exercise of PD is meant to alleviate the strain of DHS’s limited resources, a person is more likely to get a favorable grant of PD if his/her case is reviewed very early on in the course of removal proceedings or deportation process, as opposed to late in the proceedings (for example, after the merits of the case have been heard and testimony is complete) at which time significant government resources have already been spent.
If a request for DHS to exercise PD has been denied, the individual can ask for PD again. However, the second request should include additional arguments or documents that were not provided in the initial request. Simply resubmitting the same PD request will not likely result in a more favorable outcome.

Gavlin & Associates has been very successful in working with DHS to obtain favorable exercises of prosecutorial discretion for our clients. We work closely with our clients to ensure that each unique prosecutorial request highlights the best reasons to allow individuals to remain in the U.S. If you are thinking of pursuing a request for prosecutorial discretion, call our office to arrange a consultation with one of our expert attorneys.