Immigration Prosecutors have now been re-granted broad-based discretion and the personal authority to decide cases or drop cases altogether. Under U.S. Immigration Law, Prosecutorial Discretion (PD) refers to the power that ICE has to discontinue working on a specific immigration case which involves the particular potential for deportation.  ICE may exercise its PD in a multitude of ways, including but not limited to asking an Immigration Judge to close a case.  Alternatively, ICE may agree to request that an Immigration Judge re-open a case so that an individual may request relief from removal.

Prosecutorial Discretion in Immigration is extremely helpful for three reasons: 1) It reduces wait times and processing delays due to governmental red-tape; 2) It is a tool that may be utilized to avoid deportation and essentially “buy time” while pursuing alternative avenues of relief to obtain visas or green card status; and 3) It prioritizes cases of national security or public safety so that lower priority cases with no aggravating factors such as criminal histories of felonies have a greater chance of obtaining positive outcomes.  Simply stated, by exercising PD, the government is choosing to overlook some undocumented persons in favor of targeting individuals who are in a higher priority category due to their histories or potential future threat to the United States.

Notably, in determining whether to exercise prosecutorial discretion, not only will aggravating factors be analyzed, but mitigating factors will also be considered. Relevant mitigating factors may include a noncitizen’ s length of residence in the United States, service in the military, family or community ties in the United States, circumstances of arrival and manner of entry, prior immigration history, work history in the United States; pursuit or completion of education in the United States, status as a victim, witness, or plaintiff in civil or criminal proceedings, whether the individual has potential immigration relief available, noteworthy contributions to the community or country, and any compelling humanitarian factors, such as the health of the noncitizen or any close family members or caregivers. 

Attorney Edward Shulman of Elmwood Park, New Jersey was the featured speaker on IMMIGRATION NEWS TODAY via Zoom where he was asked to weigh in on the benefits of obtaining Prosecutorial Discretion.  He highlighted three salient points: 1) While this return of discretion to Pre-Trump practice is extremely hopeful for low priority individuals, it is important for people to understand that PD will not automatically confer other immigration benefits such as work authorization; 2) Just because one family member may benefit from PD, this does not automatically ensure that other family members will be beneficiaries or also receive PD; and 3) PD is not a formal program and may not be the best option for every case.  As such, Shulman stated that it is critical to receive well-qualified immigration counsel to discuss the various individualized benefits and risks.