Those dealing with legal issues related to immigration may be provided a type of relief in the form of prosecutorial discretion. The idea of prosecutorial discretion is that federal or state prosecutors have the ability to decide when and how to enforce the law. This discretion has the ability to work in a potential or current defendant's favor.
In the realm of immigration, the prosecutor can choose to forego removal proceedings, terminate existing removal proceedings, to stay, or not carry out any existing removal orders, and to join in or not contest motions to reopen removal and terminate removal proceedings.
Generally, government agencies like USCIS (U.S. Citizenship and Immigration Services), ICE (Immigration and Customs Enforcement), and CBP (Customs and Border Patrol) have the ability to exercise discretion. Prosecutorial discretion is quite broad and can be used either on a case-by-case basis or an agency-wide basis.
Who Benefits from Prosecutorial Discretion?
Generally, prosecutorial discretion should be used with less serious crimes. This will allow more time and resources to be spent on the more severe crimes. Another way prosecutorial discretion is used is by choosing not to initiate legal proceedings against certain individuals. These individuals may be juveniles, elderly, of poor health, victims of domestic violence, and/or primary caregivers.
There is no bright line rule related to how prosecutorial discretion is carried out by government agencies and related personnel. Therefore, while it may prove helpful to one immigrant, it may not work out the same way for another individual. This is true even if the crime or offense was committed under similar circumstances or by individuals of similar circumstances.
One commonly used method of prosecutorial discretion is through deferred action. Deferred action is a discretionary determination to defer removal action of an immigrant. Being granted deferred action does not mean the immigrant has been given lawful status or will it erase any previous periods of unlawful presence.
A specific type of deferred action is that related to childhood arrivals. Under this type of deferred action, certain requirements must be met:
- The alien must have been under the age of 31 as of June 15, 2012;
- The alien must have come to the U.S. before reaching his 16th birthday;
- The alien must have continuously resided in the U.S. since June 15, 2007 and up until the present;
- The alien must have been physically present in the U.S. on June 15, 2012, and at the time of making the request for consideration of the deferred action with USCIS;
- The alien must have entered without inspection before June 15, 2012, or his lawful immigration status expired as of that date;
- The alien is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.; and
- The alien has not been convicted of a felony, significant misdemeanor, three or more misdemeanors, and does not otherwise pose a threat to national security or public safety.
Do You Need an Attorney?
Immigration law is constantly changing and it is difficult to keep up with these changes, revisions, and updates. A competent immigration attorney is informed of these changes and will ensure that you receive the best advice and representation possible throughout your legal matters.
To schedule an initial consultation with our Tucson, Arizona, lawyer, call (520) 882-8852, toll free at (877) 882-8852 or email the Tucson, Arizona, Law Offices of Matthew H. Green.