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Get Ready! Prosecutorial Discretions are being Revoked.

Question: I was in Immigration Court about 2 years ago and had no relief. However, I did not have any crimes either and my attorney made a motion for prosecutorial discretion. However, last week, I was arrested for DUI. I did not even have to plea as the case was dismissed. There was no evidence and I have no conviction. However, the arrest prompted ICE to revoke my Prosecutorial Discretion. What happens now?

Answer: Under U.S. immigration law, prosecutorial discretion (PD) refers to the power that ICE has to discontinue working on a deportation case. ICE can exercise its PD in many different ways. For example, ICE can join you in asking an immigration judge to close your case. Prosecutorial discretion used to be under Obama one of the most important aspects of Immigration Law. Immigration Prosecutors can choose not to prosecute a crime for which someone is arrested. They can decide to pursue less serious charges. They can basically decide not to issue the Notice to Appear and begin Removal Proceedings.

However, under Trump, this has changed. Prosecutorial Discretion is all but dead. It is very rarely being issued. There are, of course, situations where it is still merited, but nothing like before. Additionally, ICE is revoking grants of PD left and right. Therefore, it becomes necessary for you to know your rights.

You do not have to sign a voluntary deportation;
You can fight your case in front of the Immigration Judge; and
You can still get detained;
You can make a motion to get bonded out.

Therefore, you will note that ICE officials in many cases will not tell you the truth and will lie about what you can and cannot do. You MUST know that you can fight your case and the fact that the Prosecutorial Discretion was denied and/or revoked is no reason to give up. It just means you must fight your case now.

Question: But how can I fight? What should I do?

Answer: First, get a qualified Immigration Attorney. Each case is different. This means that depending on your situation, the particular forms of relief will be different. We might be able to apply for Cancellation of Removal or Adjustment of Status, or Waivers of a variety of different kinds, or Asylum, Withholding of Removal, Convention Against Torture or a number of other forms of relief. What is important is that you can fight your case. Simply because Trump has decided to issue orders revoking Prosecutorial Discretion does not mean your path has ended.

Immigration Attorneys across the country are fighting every order that Trump makes. He cannot simply make the Immigration and Nationality Act disappear, or the Code of Federal Regulations, or the Policy Memos or the Foreign Affairs Manual. We are a country of Laws and one man, even if President of the U.S., cannot simply dictate and make all of that disappear.

We are fighting one case at a time and ultimately, we will prevail and the tides will turn. Trump is already seeing through his Muslim Ban, that he cannot simply sign a paper and think it becomes law.



TRUMP revoking many PD Cases

The AssociatedPress reports that immigrants who received deportation orders but were allowed to stay in the United States under the Obama administration have become a target under President Donald Trump’s new immigration policies, with some getting arrested during check-ins with immigration officers. In other instances, immigrants with deportation orders have been released, much like they were during President Barack Obama’s administration, in what immigration attorneys say appears to be a random series of decisions based more on detention space than public safety.

Another Win for the Law Offices of Brian D. Lerner


HS Provides Pocket-Size Instruction Card on Prosecutorial Discretion to Enforcement Officers

DHS issued an instruction card for enforcement personnel to carry that provides guidance and brief instruction on the DHS enforcement priorities articulated in the November 20, 2014, memo on prosecutorial discretion. ICE Director Sarah Saldaña presented the card to the House Judiciary Committee at an oversight hearing last week.

Prosecutorial Discretion: How to avoid deportation

Prosecutorial Discretion: A tool to Avoid Deportation

Question: I got into a minor criminal situation and now I am very afraid that I will be placed into deportation proceedings. What can I do?

Answer: There are several forms of relief that you might be eligible for in proceedings. However, one very effective tool that I would look into would be known as Prosecutorial Discretion.

Question: What is Prosecutorial Discretion?

Answer: Prosecutorial Discretion can be used in a variety of different situations. Some examples would include: deciding to issue or cancel a notice of detainer; deciding to issue, reissue, serve, file, or cancel a Notice to Appear(NTA); focusing enforcement resources on particular administrative violations or conduct; deciding whom to stop, question, or arrest for an administrative violation; deciding whom to detain or to release on bond, supervision, personal recognizance, or seeking expedited removal orother forms of removal by means other than a formal removal proceeding in immigration court.

Question: What happens if the Prosecutorial Discretion is granted? What would I get?

Answer: Some will depend upon what exactly you are asking for and where in the proceedings you are. However, generally, if granted, Prosecutorial Discretion can stop a deportation/removal proceeding, or can keep one from being filed in the first place, or can reopen a removal order already issued. It can settle or dismiss a proceeding; grant a deferred action, grant parole, or staying a final order of removal; or it can respond to or join in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.

Question: What factors are considered when deciding on whether to grant a request for Prosecutorial Discretion?

Answer: There are a lot of different items that are considered. They are as follows:

– the agency’s civil immigration enforcement priorities;
to presence while in lawful status;
the United States;
removal, prior denial of status, or evidence of fraud;
whether the person poses a national security or public safety concern;
the person’s ties to the home country and condition in that country;
disability, minor, or seriously ill relative; ;
whether the person or the person’s spouse is pregnant or nursing;
whether the person’s nationality renders removal unlikely;
trafficking, or other crime; and
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department ofLabor, or National Labor Relations Board, among others.
Question: Can I do this myself?

Answer: It is always possible, but it would be much better for you to obtain professional help. It is not easy to get this approved, but it is certainly possible if done properly.

Another win for the Law Offices of Prosecutorial Discretion

Prosecutorial Discretion granted for a family of 3; father, mother and daughter. Parents had applied for cancellation of removal for non Lawful Permanent Residents, but they did not have a very strong case. Daughter also applied but did not have a qualifying relative, so she needed one of her parents to be granted.

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