Published March 21, 2016


No matter what stage in the deportation/removal process a foreign national may find themselves in, and no matter their previous immigration status – or lack thereof, there is always the option of seeking “prosecutorial discretion”.  Of course, those who have available to them a specific legal defense under governing immigration laws may not necessarily need to make such a request. However, the weaker their legal defense, the more likely a request for prosecutorial discretion should be asserted.

A government agency’s discretion over whether to prosecute, or not prosecute, a law breaker is at play when it comes to pretty much all levels and branches of federal, local and state law enforcement decisionmaking.    Discretion in the prosecution of those violating our immigration laws is no exception.  In fact, there is probably no law enforcement agency that exercises its discretion NOT to prosecute more than our nation’s immigration agency.   On the other hand, the violations at play in the immigration context, are only civil in nature, and generally do not involve criminal law violations.     

These days – pursuant to Obama administration directives, the only individuals who are being placed in removal proceedings are generally individuals who are removable only because they have been involved in either criminal, immigration fraud, or terrorist related activity.   Otherwise, the vast majority of undocumented folks who do not violate our criminal laws are by and large left alone by immigration authorities.

In the context of removal proceedings –where the deportation of immigration law violators is sought, a prosecutorial discretion request is made with an agent or other representative of U.S. Department of Homeland Security’s Immigration and Customs Enforcement (“DHS/ICE”).  

Indeed, in the guidance the Obama administration has provided to DHS/ICE officials, mercy and humanitarian concerns play a significant role in the prosecutorial decisionmaking process.  Such factors include:

—  Ties to U.S. citizen or lawful permanent resident family members, and especially immediate family,

—  Length of residence in the U.S., no matter their immigration status,

—  Exceptional hardships involving a medical condition, or other personal circumstances, impacting the applicant or members of their U.S. family

—  Absence of any criminal law violations in the applicant’s history,

—  If a criminal history, the applicant’s successful rehabilitation,

—  An applicant’s noteworthy educational or professional achievements,

—  An applicant’s military service,

— Evidence of charitable and/or humanitarian contributions to their community or religious institution,

—  Economic or other hardships and/or unlivable conditions in the applicant’s home country,

—  An applicant’s record of successful employment or other professional accomplishments, especially if it involves some humanitarian purpose

Whether you have received a notice to appear for removal proceedings, or are facing imminent deportation due to an already entered order (where a stay of removal would also be requested), a request for prosecutorial discretion may be your last and only chance to remain in the U.S.   With a grant of prosecutorial discretion, a person who might otherwise be looking at being forced to return to their home country, will instead be allowed to remain in the U.S. – to live in peace and sometimes even work legally, albeit without any permanent, secure immigration status.



PUBLISHED March 21, 2016– “IMMIGRATION LAW FORUM” Copyright © 2016, By Law Offices of Richard Hanus, Chicago, Illinois