Prosecutorial Discretion 101

Prosecutorial Discretion 101
By: Rhoda Agyeman, Legal Clerk at Affordable Law Group

Immigration and Customs Enforcement (ICE) is an agency of the United States Citizenship and Immigration Services (USCIS). ICE is primarily responsible for enforcing federal laws relating to border control, customs, trade and immigration. This government agency is also responsible for arresting and removing aliens who present a danger to national security or individuals who enter the United States illegally. There are various options of relief for individuals facing deportation, including prosecutorial discretion.

What is Prosecutorial Discretion?

Prosecutorial discretion is essentially the power an ICE or Department of Homeland Security (DHS) official has to prosecute or decline to prosecute an ongoing case. In essence, the ICE official has the option to proceed with removal of an individual who has violated an immigration law or is a threat to national security. The authority also gives the official the opportunity to decline to prosecute the individual and grant an administrative closing of the individual’s case.

How Does Prosecutorial Discretion Work?

After an individual receives a Notice to Appear, (a document that informs an individual charged with an immigration violation that removal proceedings have been initiated) ICE can exercise its discretion – of its own initiative or upon request – to determine whether to proceed with pursuing removal of the individual. Given that it is unlikely that ICE can remove all persons illegally present in the country, there are several factors that are considered in determining whether to grant prosecutorial discretion. Such factors include:

 The individual’s pursuit of education in the United States;
 The circumstances of the person’s arrival in the country;
 The person’s length of presence in the United States;
 Whether the individual has any immediate relatives who have served in the armed forces;
 The individual’s contributions to the community;
 Whether the person has a United States citizen or permanent resident spouse, child, or parent;
 The individual’s age;
 The likelihood for the individual to be granted temporary or personal relief from removal.

The decision to prosecute or decline prosecution is based on a priority system determined by the Department of Homeland Security. DHS and ICE seek to focus their resources on individuals that fall within the “highest priority” category. This category includes individuals who pose a threat to public safety such as criminal aliens and national security threats, as well as, repeat immigration law violators and recent border entrants. By focusing on the “highest priority” cases, ICE can close less important cases and save time and resources for more important matters. This discretion means ICE can choose to deport one undocumented immigrant and not the other; prosecutorial discretion works on a case-by-case basis. If the immigration official decides not to enforce removal proceedings on the individual, it is considered a favorable decision and allows the person to remain in the United States.

Key Facts

 Prosecutorial Discretion applies to individuals who are in removal proceedings (deportation)
 Prosecutorial Discretion does NOT provide the individual with any immigration benefits.
 There is NO work authorization granted through prosecutorial discretion.
 Prosecutorial Discretion does NOT provide an individual with permanent lawful status.
 Individuals who are denied a request for prosecutorial discretion CANNOT appeal the decision.
 Prosecutorial Discretion DOES NOT apply to recent border crossers or individuals arrested at the border.

Prosecutorial Discretion is one of many options of relief within the immigration process. It is a possible option with its benefits and disadvantages. The decision to seek prosecutorial discretion is crucial and should not be made without full and adequate knowledge of the law. This is a very complicated area of law; therefore, it is strongly recommended that questions and concerns about the process are directed to an experienced immigration attorney.

To schedule a free phone consultation with Affordable Law Group on immigration or another legal matter, please call 617-971-8295 or email

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