Prosecutorial Discretion refers to the government’s power to decide whether or not they want to move forward with an action, or if they do move forward, to decide to what extent they wish to punish the defendant. The government attorneys have the ability make the call on every case they take.
The last administration restricted the use of Prosecutorial Discretion. This meant that, although Prosecutorial Discretion was never an official remedy for non-citizen immigrants, there was one less avenue for them to use. In many cases, non-citizens were detained for minor offenses, such as traffic infractions by local police, and were subsequently deported, despite being otherwise law abiding, tax paying, upstanding citizens.
The Return of Prosecutorial Discretion
On May 27, 2021, a memorandum from the Department of Homeland Security explained that the Office of the Principal Legal Advisor (OPLA) and United States Customs and Immigration Services (USCIS) once again have their power of Prosecutorial Discretion. The memo summarizes the 3 categories of people for whom the government will prioritize removal proceedings. Those categories are:
- Non-citizens who have engaged in or are suspected of terrorism or espionage;
- Non-citizens detained at the border who are attempting to enter the U.S. unlawfully; and
- Non-citizens convicted of aggravated felonies, and felonies committed while participating in a street gang.
The mandates laid out by the memo mean that lawyers and non-citizens involved in removal proceedings (i.e. deportation) could ask the government to use discretion in pursuing enforcement of the law, even where there may not be any other “formal” relief available. The government will make the decision based on a number of factors. Working with a lawyer who is familiar with these factors and the procedure for seeking prosecutorial discretion can give non-citizens a huge advantage in obtaining a bond or seeking prosecutorial discretion.
Understanding Control of Prosecutorial Discretion
The president has more control over the rules and policies affecting immigration courts than other areas of the law because immigration courts operate under the Department of Justice, as opposed to the typical court judges, who operates under Article III of the Constitution. This means that Prosecutorial Discretion could be taken away again as quickly as it reappeared, until Congress enacts a law that secures it permanently.
The see-saw is important because a non-citizen seeking to obtain status as a citizen or permanent resident may apply for relief through the USCIS. If they are ineligible or denied this relief, they may be immediately placed into removal proceedings before the Immigration Court.
As things currently stand, the denial does not necessarily mean they will automatically be deported if they do not fall into one of the three categories previously outlined in the memo. However, there is no guarantee that this policy will remain in place for any length of time.
The Importance of Getting Help from an Immigration Lawyer
Our immigration attorneys stay up to date with the current status of immigration laws and rules of the court and can advise you on how and when to apply for immigration relief.
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