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What Does Prosecutorial Discretion Mean in Connection with U.S. Immigration Law?

President Obama’s recent executive action has sparked debate about the role of prosecutorial discretion in the exercise of immigration policy. Supporters of the president’s action hail it as a pragmatic approach to an overwhelming problem that Congress has failed to solve, while critics claim that Mr. Obama has violated two important Constitutional principles: the separation of powers and the chief executive’s duty to faithfully execute the nation’s laws.

Prosecutorial discretion exists in all enforcement actions, whether in criminal court or before a government agency, such as U.S. Citizenship and Immigration Services, that has enforcement power. Simply put, an officer charged with prosecuting an offense can decline to prosecute if justice can be served without prosecution. In criminal cases, this might mean allowing a defendant to avoid trial and enter a drug treatment program.

With regards to immigration, USCIS officers can decline to prosecute out-of-status foreign nationals who are peaceable and law abiding. Instead, USCIS can dedicate vital government resources on removal proceedings for foreign nationals who pose a threat to the welfare, safety and national security of the United States.

However, prosecutorial discretion has always been understood as a case by case exercise. When President Obama ordered that prosecutorial discretion be given to broad classes of undocumented immigrants, under DACA and DAPA, opponents charged that he went beyond the bounds of prosecutorial discretion and was actually rewriting the law, something that is forbidden to his office under the U.S. Constitution. Supporters point to the huge numbers of undocumented immigrants in the U.S., estimated at about 11.2 million persons. The president has the right to say which unlawful foreign nationals should be processed first, as long as his criteria advance the goals of U.S. immigration law. Prioritizing criminal aliens for removal certainly serves this purpose. Moreover, decisions to grant deferred action to applicants who qualify is still done on a case-by-case basis.

Prosecutorial discretion is a “time out,” not a “win”

It is important to realize that prosecutorial discretion does not grant legal status. It is a decision to “defer action” on your status, which grants you an extension of time before the government gets around to examining your status. During that time, you do not have lawful status, but can enjoy certain benefits, such as:

  • Work authorization
  • Social Security number
  • Medicaid emergency services
  • Permission to travel outside the U.S. if USCIS grants advance parole
  • Driver’s license in certain states

To find out if you are eligible for deferred action under any of the current programs, call Bretz & Coven, LLP. Call today at 1 (212) 267-2555 or contact us online to schedule an appointment to speak confidentially to a knowledgeable immigration attorney. Remember, even if you qualify, USCIS grants deferred action on a case-by-case basis, so having an experienced attorney on your side is vitally important. 

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