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The Future of Prosecutorial Discretion

What is Prosecutorial Discretion?

Late in his administration, President Barack Obama outlined a system of “priorities” for deportation in order to channel the government’s resources towards deporting certain types of immigrants. Under this strategy, called “prosecutorial discretion,” (“PD”), the Department of Homeland Security (DHS) is encouraged to prosecute immigrants with criminal histories or who had recently entered the country. At the same time, these guidelines are designed to discourage DHS’ prosecution of immigrants with longstanding and family ties to the U.S., children, the elderly, and anyone facing serious humanitarian concerns (such as a serious medical condition.) For these non-priority immigrants, in its discretion, DHS is to exercise favorable exercises of prosecutorial discretion rather than prosecute the case in Immigration Court.

How does Prosecutorial Discretion Work?

When DHS agrees to a favorable exercise of PD, an immigration judge administratively closes the immigrant’s case. Practically speaking, an administrative closure simply means taking the immigrant’s case off the court’s calendar. It does not mean that the case has been terminated. The immigrant remains in deportation proceedings even after the judge administratively closes her case. The reason for this is that DHS has only agreed not to actively attempt to deport the immigrant in that particular moment, because that immigrant’s profile does not meet President Obama’s guidelines for deportation. If and when the priorities change, or if the priorities are eliminated, DHS may request that the Immigration Court put the case back on the court’s calendar, so that the immigrant will have to face prosecution in order to avoid being deported. Similarly, the immigrant may request that the Immigration Court re-calendar her case in the future, so that she may seek some form of relief that is not available at the time that DHS agrees to exercise PD.

What is the Appeal of Prosecutorial Discretion?

Many immigrants who accept DHS’ offer of prosecutorial discretion do so, because they fear that they would not prevail if they were to litigate their case seeking another form of relief. An asylum seeker, for example, may have difficulty gathering evidence of his persecution and may worry that he would lose his asylum case. Rather than risk a deportation order, he may opt to accept an offer of PD so that he may remain in the country without worry that the government is actively trying to deport him. While PD does not confer status and does not allow its recipients to travel, a favorable exercise allows immigrants to remain in the U.S., often with employment authorization. Should the immigrant ever become eligible to apply for relief in the future, he may request that the court re-calendar his case, so that he can apply for that benefit. For these reasons, PD under the Obama administration has been a viable alternative for those immigrants without any other source of relief available to them.

What Effect Might Donald Trump’s Presidency Have on Prosecutorial Discretion?

At this point, it is difficult to predict the future of PD. Until Donald Trump actually assumes office in January and begins to implement changes to immigration policy, it will be impossible to gauge what he plans for the strategy that President Obama has put into place. At different moments throughout his campaign and post-election, Trump has offered conflicting information with regard to his ideas for the 11 million undocumented immigrants living in the U.S. While campaigning, Trump consistently pledged to deport every undocumented without discretion. To pursue this plan would be to abandon the PD strategy entirely and to enforce deportations without regard to criminal history, family ties, or humanitarian concerns. Critics of this proposal have pointed out that undocumented immigrants remain entitled to due process of law, meaning that such mass deportations could not be enforced without first permitting immigrants to defend themselves against deportation in Immigration Court. The litigation and deportations of millions of immigrants would tear apart millions of mixed immigration status families at enormous expense to the federal government. For these practical reasons, it is unlikely that we will see deportation to the full extent to which Trump has envisioned. However, many current beneficiaries of PD will surely find themselves back in Immigration Court facing prosecution once the Trump administration is underway.

What Should I do if I have Questions about my Immigration Case?

If you are concerned about your future as a beneficiary of PD or your status as a non-citizen, it is important to consult with an experienced immigration attorney. The attorneys at Bretz & Coven, LLP have a long history of zealous, knowledgeable, and honest advocacy on behalf of immigrants. To schedule your consultation, contact our qualified lawyers today at (212) 267-2555.

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The immigration consequences of criminal or fraudulent conduct can be harsh and often illogical. Even a very minor offense could have a dramatic immigration consequence, including deportation, detention without bond, being denied naturalization, a visa or re-entry into the United States. Likewise, the use of fake or fraudulent documents, aliases, and other misrepresentations can have similar immigration consequences. Kerry Bretz and Bretz & Coven have been counseling non-citizen criminal defendants, as well as their lawyers, for over 20 years. We have a long history of strategizing deportation and removal defenses, as well as applications for waivers, in very complicated cases.

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