Under immigration law, discretion is defined as the ability to determine the outcome of a request by comparing the positive and negative facts in an applicant’s situation. The applicant’s circumstances also influence the decision. Discretion is most often used in cases where an individual has legal proceedings started against them on account of being in the country illegally. However, it can also be used in other instances, such as when seeking asylum.
Prosecutorial discretion can be used to determine whether or not to begin legal proceedings against an illegal immigrant, or in deciding other action such as deportation. During these processes, one can request the relevant official to use prosecutorial discretion to influence their decision.
When doing this, positive and negative factors about the individual are considered. Positive factors include having a stable family within the country, lack of a criminal record, having a stable job and more. Negative factors include not having a job, having a positive criminal record and others. In addition to the negative and positive factors, an individual’s current circumstances also have an influence on discretion.
Using discretion to one’s advantage requires that they work with an immigration attorney in order to identify the technical aspects that can have an effect on discretion. Ultimately, discretion allows an immigration officer to make a decision not by rigidly following the laid down procedures, but also by taking into account an individual’s circumstances. For instance, if one is in the country illegally and is therefore a candidate for deportation, discretion can be used to avoid this and offer them a legal status if they have many positive factors in their favor.