Prosecutorial Discretion is the discretion enjoyed by the executive branch of the government to defer removals, revisit current policies and priorities and interpret the law as compassionately as possible. Prosecutorial discretion is exercised by the law enforcement agencies like ICE, USCIS and CBP to put people in removal proceedings, terminating proceedings, or delaying removals in cases where people have longstanding ties to the community, U.S. citizen family members, or other characteristics that merit a favorable exercise of discretion. Because of limited agency resources, ICE cannot remove all persons illegally present in the U.S. Instead, ICE uses a number of factors, most of which were enumerated in a June 17, 2011 memo from Director John Morton, to decide when to prosecute and when to exercise prosecutorial discretion. Some of the factors are the person’s pursuit of education in the U.S.; the circumstances of the person’s arrival in the U.S.; the person’s length of presence in the U.S.; whether the person or any immediate relative has served in the armed forces; the person’s ties and contributions to the community; whether the person has a U.S. citizen or permanent resident spouse, child, or parent; the person’s age; the person’s ties to his or her home country; and whether the person is likely to be granted some sort of temporary or permanent relief from removal.
Because prosecutorial discretion is a process that determines whether the government is going to pursue enforcement in a case, the initial decisions are made by those immigration officers assigned to the case. Once the initial decision is made to issue a Notice to Appear (a document that formally initiates removal proceedings by charging an individual with immigration violations), further decisions about continuing the government’s case will be made at higher levels within ICE or DHS.
Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order.
We, at the Law Offices of Aditya Surti, LLC have successfully handled Prosecutorial Discretion and helped our clients in terminating their removal proceedings.