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Prosecutorial Discretion (“PD”) – A Useful Management Tool for a Broken Immigration Court and a Lifeline for Immigrants in Removal Proceedings

After four years of devastating anti-immigrant policies, immigrants and their families are beginning to see reasons for hope under the Biden administration. One promising development is the reinstatement of a process for applying for prosecutorial discretion (‘PD’). PD refers to immigration officials being able to use their judgment, based on established criteria, in deciding whether to start, continue, or close Immigration Court removal proceedings against a person, or whether to detain someone thought to be in violation of the immigration laws, or not deport someone who has been ordered removed from the US for humanitarian reasons. PD exists because the government’s resources should be focused on the most urgent deportation priorities (removal of non-citizens with serious criminal convictions) and not on removal of long-time, law-abiding residents of the US. PD also reflects positive priorities in our immigration system, such as reuniting families and helping persons who urgently need medical care or who have been abused. This post will look at PD in the Immigration Court removal context. 

Historically immigration authorities have exercised Prosecutorial Discretion for humanitarian reasons, for example giving temporary protection from deportation and employment authorization to a person receiving treatment for a life-threatening medical condition. However, beginning in the 1990s, when our immigration laws became much harsher and focused on the deportation of those with even minor criminal convictions, PD became much more difficult to seek and obtain. Under the Trump administration, the Department of Homeland Security’s focus turned to all-out enforcement and away from any humanitarian aspects of immigration policy. Through a series of DHS policy directives and Attorney General decisions the government’s exercise of PD to benefit immigrants largely ended. 

With the coming of the Biden administration this year the PD pendulum has finally swung back. DHS lawyers have now been instructed to exercise PD in appropriate removal cases. A system for applying for PD is in place, allowing a person who has a case in Immigration Court to affirmatively request that the case be continued (postponed), closed, dismissed, or reopened (where there was a removal order in the past). This step may be necessary to gain the time needed to benefit from a family member’s petition, other pending application or to reopen a removal order to give another opportunity to apply for relief based on changed circumstances. 

An application for PD must be supported by proof of all relevant discretionary factors: positive factors include evidence of the length of residence in the US, service in the US military (of the person or a family member), family and community ties in the US, prior immigration history, work and education history in the US, and compelling humanitarian factors of the person or a close family member (including serious medical conditions, old or young age, and pregnancy). Adverse factors, including any criminal activity and immigration violations, must be disclosed and put into context through evidence of rehabilitation, extenuating circumstances, and the passage of time since the conduct occurred. 

PD is important because it will end or delay the immediate threat of deportation and may allow the opportunity to obtain permanent resident status. Although PD by itself does not give any permanent legal status, in many cases it will be a crucial part of a strategy to gain legal status in the future. A PD application must be thoroughly and carefully presented since it may be a unique opportunity to turn the threat of a removal order into possible permanent residency.