New Guidelines on Prosecutorial Discretion

On March 19, 2015 the Department of Homeland Security (DHS) released new guidelines for the apprehension, detention and removal of undocumented immigrants. It is very important for any individual who is eligible for DACA and DAPA or, anyone who is currently involved in an immigration court case to understand these new guidelines because they discuss “prosecutorial discretion”. Prosecutorial discretion could be a valuable form of relief which would allow individuals who qualify to remain in the U.S.

Este artículo se trata del nuevo anuncio del Department of Homeland Security. El tema del artículo es, “Prosecutorial Discretion” – un concepto legal que podría permitir a los inmigrantes indocumentados a quedarse en los Estados Unidos y evitar la deportación inmediata. Para obtener más información en Español, llámenos o envíenos un mensaje para discutir los detalles de su caso.

What is “Prosecutorial Discretion”?

“Prosecutorial Discretion” (PD) is the ability for a law enforcement agency OR officer to decide whether to enforce a law and; how strictly to enforce a law. All law enforcement agencies have the right to use PD including, Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS).

Examples of “Prosecutorial Discretion”

Prosecutorial Discretion can be used by law enforcement agencies in a variety of ways. With prosecutorial discretion. a law enforcement officer can decide to not enforce a law or; choose to how strictly to enforce a law. Here are some examp:

  • Grant or Approve Deferred Action
  • Grant or Approve Parole
  • Grant of Approve a “Stay of Removal”
  • Decide to not issue a Notice to Appear (NTA)

How Can “Prosecutorial Discretion” Help Undocumented Immigrants?

Prosecutorial Discretion could be a very useful form of relief for undocumented immigrants who wish to remain in the United States. In immigration cases, prosecutorial discretion can be used for the following:

  • Investigations
  • Arrests
  • Detention
  • Beginning of Removal Proceedings
  • Pursuing an Appeal
  • Decision of Final Removal Orders

It is important for undocumented immigrants hoping to remain in the U.S. to understand that choosing to pursue prosecutorial discretion may be the only/best option available.

Who is Eligible for Prosecutorial Discretion?

Prosecutorial Discretion is a complicated legal issue. Prosecutorial Discretion is a good option for undocumented immigrants who are not categorized as a “threat” by enforcement agencies. This means that if an individual is classified as a “threat”, then they will most likely not qualify or be successful with prosecutorial discretion. Here are examples of some of the groups that are classified as “priorities” and would most likely not be eligible for prosecutorial discretion:

  • Individuals engages in terrorism, or other activities that are a threat to national security.
  • Aliens who attempted to enter the U.S. unlawfully and were apprehended at the border, or other port of entry.
  • Individuals who have connections or have participated with street gangs.
  • Immigrants who have been convicted of an “aggravated felony”.
  • Aliens convicted of 3 misdemeanors other than minor traffic issues.
  • Aliens who have been convicted of a “significant misdemeanor.

Because the new guidelines for prosecutorial discretion were just released, it is essential for undocumented immigrants to speak with a legal professional. An experienced immigration lawyer who understands these new guidelines will be able to provide advice on if prosecutorial discretion is an option.

How Does “Prosecutorial Discretion” Affect DACA and DAPA?

If an individual is eligible for DACA and DAPA, they should ask a lawyer about prosecutorial discretion. If you meet the qualifications for either DACA or DAPA then, you are not seen as a “threat” and could pursue prosecutorial discretion for your case. Prosecutorial discretion is available now, even though DACA and DAPA are still pending.

Why You Should Work with an Immigration Lawyer.

Anyone who is interested in pursuing prosecutorial discretion needs to work with a reliable immigration lawyer. Every case is different and law enforcement officers/agencies have to consider many different facts. Some information that could affect you case are:

  • Unique information about an offense or conviction (information that explains why an offense or conviction is less severe).
  • Time since the original offense or conviction.
  • Military service.
  • Family or community ties in the United States.
  • Status as a  victim, a witness or a plaintiff in civil or ciminal proceedings.
  • Humanitarian factors (poor health, age, pregnancy, a young child, a seriously ill relative and others).
  • Other factors.

It is important to remember that this list only includes some of the possible information that could affect the success of a prosecutorial discretion case.

We Are Ready to Help You!

If you are interested in learning more about prosecutorial discretion and how it can help you, call Pride Immigration Law Firm PLLC or send us a message online to tell us about your case. We can provide you with a consultation and explain to you what your best option is. Every immigration case is different and we are prepared to do everything we can to make sure you get the best possible result for your case y Se Habla Español.

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Beeraj Patel, Esq.

Partner at KPPB Law
Beeraj Patel's philosophy is simple - make it easy for talented and ambitious individuals to have access to immigration materials so that they can make the choice which is right for them.

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