Immigration and Customs Enforcement (ICE) is the principal investigative and enforcement arm of the U.S. Department of Homeland Security (DHS). If you are living in the United States without status, ICE is the government agency tasked with apprehending and prosecuting you. They are the immigration police and prosecutor. If an immigration judge orders you removed, ICE is tasked with removing you.

If ICE prosecuted every non-citizen put into removal proceedings, the already overloaded immigration court would grind to a halt and ICE would have fewer resources to prosecute high-priority cases. To avoid this, ICE may decide to not prosecute low-priority cases through prosecutorial discretion. If you have been served with a notice to appear, you need to talk with Kentucky immigration lawyers CF Abogados about the possibility of prosecutorial discretion in your case.

What is Prosecutorial Discretion?

Although ICE is committed to enforcing the immigration law, in June 2011 ICE announced it was going to allow ICE officers and attorneys more discretion in prosecuting low-priority cases.

ICE generally screens cases before and after a non-citizen is placed into removal proceedings and can decide to exercise prosecutorial discretion for low-priority cases. A non-citizen may also ask ICE to consider them for prosecutorial discretion at any stage of removal proceedings, even after a final order of removal has been issued. In either case, once prosecutorial discretion is granted, ICE will ask the immigration judge to administratively close the removal case.

Keep in mind that although your removal case is closed and the imminent threat of removal lifted, your removal case can be reopened. If ICE determines you have become high-priority (e.g., criminal arrest) or you want to reopen your removal case to seek some benefit before the immigration judge, the case can be re-calendared. Even if granted prosecutorial discretion, you will not be able to travel outside the United States, and will not receive any immigration status. Although ICE has announced that non-citizens granted prosecutorial discretion should be granted work permits, this has yet to be implemented.

Can You Qualify for Prosecutorial Discretion in Kentucky?

There are different factors that ICE will consider in deciding to grant prosecutorial discretion, including the following:

  • How long you have lived in the United States, including whether you were brought here as a child
  • Whether you have strong ties to your U.S. community
  • How much education you have received in the United States
  • Whether you or your family has served in the U.S. military
  • Whether you have children, a spouse, a partner, or other family in the United States
  • Whether your family members are U.S. citizens or lawful permanent residents (LPRs)
  • Whether you have a medical condition that cannot be treated in your home country or your home country cannot provide the medicines you need for your illness
  • Whether you are the primary caretaker for someone with a mental or physical disability
  • Whether you or your spouse is pregnant or nursing
  • Whether you have a criminal history, including arrests, prior convictions, or outstanding arrest warrants
  • Whether your immigration history includes any prior removal, an outstanding order of removal, a prior denial of status, or evidence of fraud
  • Whether you pose a national security or public safety threat—including whether you are a member of a gang.

Other important factors include employment history and whether you have paid your federal income taxes. This is not an exhaustive list and ICE will consider the case as a whole.

Should You Ask ICE to Use Prosecutorial Discretion?

Remember, a favorable exercise of prosecutorial discretion will close your case, but will not grant immigration status. Whether this is a good option or outcome depends on your individual case.

If you have a strong case for relief from removal (e.g., cancellation of removal, asylum, adjustment of status), you may want to seek that relief instead of prosecutorial discretion. Of course, you may ask for prosecutorial discretion even if you are denied relief and ordered removed, but ICE will have less incentive to exercise prosecutorial discretion once they have litigated the entire case.

If you are eligible for relief from removal, but do not have a strong case, you may want to consider prosecutorial discretion. For example, if you qualify for cancellation of removal but lack the required hardship, you may want to consider prosecutorial discretion. Although you will not get the immigration benefit you are technically eligible for, you will generally reserve the right to seek that relief later if desirable or necessary. For example, if you are eligible for cancellation of removal, receive prosecutorial discretion and your removal case is closed, you could still seek cancellation of removal if either ICE or you reopen the case.

If you are not eligible for any immigration relief through the immigration court or the U.S. Citizenship and Immigration Services, and you desire to remain in the United States, prosecutorial discretion may be your only choice. It will basically return you to your position before being put into removal proceedings. The hope is that you will become eligible for immigration status or relief while your case is closed.

How Can You Be Sure Prosecutorial Discretion is Your Best Option?

If you are a non-citizen in the United States and have been put into removal proceedings by DHS, it may be hard for you to decide what to do. You’ve heard of asking for prosecutorial discretion, but you are not sure it’s the best way to go.

Get in touch with CF Abogados now. They are Lexington immigration attorneys who have worked with non-citizens, with or without status, who were facing the possibility of removal, and they can help you determine whether you qualify for and should pursue prosecutorial discretion.

Use CF Abogados’ online contact form or call them at (859) 971-0060.