Published: February 19, 2014
Individuals defending against deportation proceedings (now known as removal proceedings) sometimes have a defense available, and other times, they don’t. Sometimes the individual is documented, but is losing their status because of some crime or other act they committed. Other times the individual is undocumented, and an immigration enforcement agent just simply caught up with them. In either of the above scenarios, the Immigration Judge presiding over removal proceedings may be in a position to consider defenses, or avenues of relief, known as “cancellation of removal”, “asylum”, or some other defense. In such cases, factors such as the individual’s long period of residence here, family ties and hardships, and/or fear of persecution in their home country are relevant, and may be the basis of a judge’s decision to terminate proceedings and even grant the individual U.S. permanent residence (“green card”). Other times, while the individual may indeed present compelling factors that fall into one or more of these categories, for some reason or another though, they do not meet all of the threshold eligibility requirements for the judge to even have the power to exercise mercy and grant relief, assuming he is so inclined. In those situations, does that mean there exists no audience for a plea of mercy, and the individual’s deportation is inevitable?
No, a plea of mercy, under the right circumstances, should be directed to the right official at U.S. Department of Homeland Security’s Immigration and Customs Enforcement division, our nation’s prosecutorial agency when it comes to deporting folks and enforcing our immigration laws.
What is prosecutorial discretion? It is a request presented to a government agency where humanitarian or other factors may justify leniency or mercy from the standpoint of strict law enforcement. In the context of immigration law enforcement, our authorities, for generations, have always been lenient in one way or another, especially when it came to strict enforcement measures against individuals overstaying their visa, or having entered without a visa. I mean, how else did we accumulate a population of 12 million undocumented in this country?
But the vast majority of these individuals have never had contact with immigration authorities or placed in removal or deportation proceedings. Even so, those individuals who do get caught up in such proceedings have an avenue to beg for mercy even if no formal legal defense exists.
Whether the individual is in the midst of removal proceedings, and the case is still before the Immigration Judge, or whether the individual has already been ordered removed and exhausted all his appeals – and perhaps is even in custody awaiting deportation, a request for prosecutorial discretion may indeed save the day.
Factors ICE officials take into account in assessing requests for prosecutorial discretion include:
* Family ties in the U.S., especially US citizen or lawful permanent resident immediate family,
* Lengthy residence in the U.S., albeit without immigration status,
* Medical, or other extraordinary hardships to the applicant or their family in the U.S.
* Clean, or only slightly blemished, criminal backgrounds,
* Evidence of rehabilitation, if applicable,
* Record of educational achievements,
* Service in the military,
* Evidence of charity or humanitarian work in the community or through a religious institution,
* Undesirable conditions in the applicant’s home country, political, economic, humanitarian, or otherwise,
* Evidence of employment, especially if serving some humanitarian purpose.
So if you are fighting off removal proceedings, or a removal order, and no rabbit in a hat is within reach, a request for prosecutorial discretion may be your best, and perhaps only hope. With a grant of prosecutorial discretion, a person who might other be shipped back to their home country, will indeed be left alone by immigration officials and be allowed to live in peace here in the U.S., albeit without any immigration status.
PUBLISHED February 19, 2014– “IMMIGRATION LAW FORUM” Copyright © 2014, By Law Offices of Richard Hanus, Chicago, Illinois