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What is Prosecutorial Discretion and How Does It Work?

Prosecutorial Discretion (casually referred to as “PD”) occurs when the Department of Homeland Security exercises its discretion in granting some form of benefit to a foreign national. In such cases, the foreign national is typically not entitled to a benefit or relief as a matter of law, but the Department agrees to use its discretion in favor of the applicant anyway.

PD can come in many ways and can be the result of different facts specific to an applicant’s case. For example, if you are in removal proceedings (meaning, you are currently attending hearings in front of an Immigration Judge), the Department can agree to administratively close your case, reopen your case (if you previously had a removal order), or terminate your proceedings altogether. If you are not in removal proceedings, then PD can come in the way of a grant of DACA (Deferred Action for Childhood Arrivals), Deferred Action (for people who do not fall under Obama’s DACA regulations), or a grant of a stay of removal (this comes after an order of removal and allows you to have a work permit).

Benefits and Disadvantages of Prosecutorial Discretion

The benefits of PD are obvious: you are no longer in removal proceedings, you no longer have to show up to court hearings, or you no longer have an order of removal. Obtaining PD in these cases allow you to continue a relatively normal life without the worry of imminent deportation.

The disadvantage is mainly that closing or terminating removal proceedings, while allowing you to stay indefinitely in the U.S. (with or without a work permit in some cases), will not get you a green card because you will not be having a final hearing; you would be instead choosing to stop all hearings indefinitely.

Who can and cannot get PD?

This is not an absolute answer because, after all, obtaining PD is within the COMPLETE discretion of the Department’s.  Generally, respondents who obtain PD are able to do so because of sympathetic circumstances (ill relatives, long residence in the U.S., lack of criminal record, etc.), while respondents who do not obtain PD have aggravating factors like serious criminal records, removal orders, recent—and/or several—entries to the U.S., etc.

A respondent maximizes his or her chances of obtaining PD by having an attorney because the attorney is the one who can negotiate with the government attorneys and the Immigration Judge. Respondents with no attorney are taking a big gamble because they generally do not have the same access an attorney would have to the judges or the government attorneys. 

If you think your case has sympathetic factors like the ones mentioned above, you may benefit from Prosecutorial Discretion, but you will likely need an attorney to negotiate with the government. You can contact our firm to discuss your options.


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