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How To Receive Prosecutorial Discretion From ICE

Author: NY Deportation Attorney Alena Shautsova

Prosecutorial discretion is a form of government action that allows a non-citizen to avoid drastic consequences of immigration law violations. ICE or Immigration and Custom Enforcement has broad powers in connection to an individual who is subject to its authority: ICE may choose not to send the case to court and cancel the issued Notice to Appear; or may agree not to issue it at all; or may choose to agree to terminate removal proceedings started against an individual or, if there was a final order of deportation (removal) against a person, ICE can choose to issue an order of supervision and not to physically deport the person.

On November 20, 2014, the Secretary of Homeland Security issued new guidance on prosecutorial discretion which all the ICE agents and employees have to follow. Unlike other parts of President Obama’s immigration initiatives (DAPA and new DACA), the new guidance are not affected by the decision of the Judge from Texas.

The prosecutorial discretion is granted on a case by case basis. The usual favorable factors include: absence of criminal convictions such as felonies or multiple misdemeanors; family ties in the U.S.; good moral character: volunteering, helping community, religious groups participation; participation in civil rights and labor disputes; health issues and other factors that warrant favorable discretion

The main role in the request for the PD (prosecutorial discretion) plays a brief in support or a detailed explanation as to why this particular individual deserves an exception. An applicant has to attach documents proving each allegation and hardship that is detailed in the brief. Such documents may include medical records; copies of tax returns; photos; letters of support; copies of receipts for bills paid; birth certificates of children born in the U.S.; documents proving good moral character, etc. In addition, it would be beneficial to explain why the person could not comply with the legal requirements and what he/she has done to do so; as well as explain the chances and prospects of future “legalization” in the U.S.

ICE has created an email account which accepts inquiries regarding prosecutorial discretion requests: eroprosecutorialdiscretioninquiries@ice.dhs.gov. Usually, however, a person should direct PD inquiries to the ICE office that has control over the person’s case.

While a person does not need an attorney to make a prosecutorial discretion request, a lawyer is usually in a better position to connect with ICE and receive a response from them than a person him/herself. In addition, often, deserving applicants cannot voice and explain the factors that should be weighed in their favor as they are not skilled advocates. This all should be taken into consideration before making an application for the prosecutorial discretion.

03 April 2015
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