What Is Prosecutorial Discretion?

If you are living in the United States without status and you face deportation, authorities from Immigration and Customs Enforcement (ICE) will handle your case. Like every government agency, ICE has limited resources and must prioritize the cases it handles. ICE officers have discretion in prosecuting low-priority removal cases.

A noncitizen who faces removal proceedings can request ICE exercise prosecutorial discretion. If it is granted, your case will be closed and you will be allowed to remain in the U.S. A noncitizen who is granted prosecutorial discretion does not receive immigration status and may not travel outside of the U.S.

It is important to remember that ICE may reopen your case if it becomes a high priority — if you are arrested for committing a crime, for example. Or, you may wish to request your case be reopened if factors are in your favor to apply for relief from removal.

The experienced immigration attorneys at Salaman / Henry in Philadelphia provide knowledgeable legal counsel regarding prosecutorial discretion and other deportation defense strategies.

Factors That Favor Your Case

ICE considers the totality of the circumstances when deciding whether or not to initiate or continue pursuing removal proceedings. The more positive factors you have in your favor, the more likely you are to receive prosecutorial discretion. Factors that may work in your favor include:

  • If you have lived in the U.S. for many years
  • If you have lived in the U.S. since you were a child
  • If you have children, a spouse or other family in the U.S.
  • If your other family members are U.S. citizens or lawful permanent residents
  • If you or a family member served in the U.S. military
  • If you are under 18 or elderly
  • If you are pregnant or nursing
  • If you are seriously ill, have a serious mental of physical disability, or are the primary caregiver for someone who is ill or has a serious physical or mental disability

Factors that may negatively impact your chances for obtaining prosecutorial discretion include:

  • If you have a criminal history, including prior arrests, convictions or outstanding warrants
  • If you have committed serious immigration law violations or faced prior removal
  • If you are a threat to public safety, which could include multiple drunk driving arrests or a drug-related violent crime
  • If you have ties to a terrorist organization or otherwise pose a national security risk

Consult With Our Knowledgeable Prosecutorial Discretion Lawyers

Prosecutorial discretion is not the best option for every noncitizen. The decision depends upon the unique factors in each individual's case. Our immigration attorneys can review your situation carefully and help you determine the best steps to take in order to remain in the U.S. Call or use the contact form on this website to schedule a free consultation. We serve clients in Greater Philadelphia and throughout southeast Pennsylvania.