Should You Seek Prosecutorial Discretion?

June 12, 2019 10:30 am
by David Jakeman

If you are in removal proceedings, you face a number of choices of how to fight your case. One of your options is prosecutorial discretion, which means requesting that ICE decline to pursue your case.

The reasoning behind prosecutorial discretion is that the government has limited resources, so it has to choose which cases are highest priority. The government has to exercise discretion in whom it prosecutes and whom it doesn’t. If you can show that you fall into a low-priority category for prosecution, ICE can decide your case isn’t worth pursuing. Persuasive evidence would include your connections to US citizens or permanent residents as well as a clean, crime-free background. You need to provide affirmative evidence of any points in your favor if you stand a chance of persuading ICE.

Expanded Priorities for Prosecution

However, since 2017, the government has restricted the reach of prosecutorial discretion by expanding its list of priorities. That list of priorities now includes the following:

  • People convicted of a crime
  • People charged with a crime
  • People who have done something that is a chargeable criminal offense
  • People who have committed fraud or willfully misrepresented themselves before the government
  • People who have abused public benefits programs
  • People with a final removal order
  • People who pose a risk to public safety or national security

Alternatives to Prosecutorial Discretion

In practice, that means most people won’t be able to use prosecutorial discretion as a way of fighting deportation. It’s probably better to fight your removal case in court or file an appeal.

If you have a criminal record, chances of successfully using prosecutorial discretion are even slimmer. However, it is sometimes possible to clean up your criminal record. It would be wise to consult a lawyer who is knowledgeable about both immigration and criminal law to figure out what your best way forward is.

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