When it comes to United States immigration law, the term prosecutorial discretion refers to the power held by United States immigration agencies allowing them to cease working on a deportation case. The U.S. immigration agencies with this power include Customs and Border Protection (CBP), U.S Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS).
In What Ways Can Prosecutorial Discretion Be Used?
Immigration agencies in the U.S can use prosecutorial discretion in several different ways. Typically, the agency chooses whether or not to exercise its prosecutorial discretion to discontinue work on an immigration case on a case-by-case basis.
If you have questions about whether prosecutorial discretion might be available to you in your case, a prosecutorial discretion immigration lawyer NYC might be able to help you. Some examples of ways in which prosecutorial discretion might be exercised by United States government agencies include:
How Does the United States Benefit by Allowing Agencies to Exercise Prosecutorial Discretion?
One of the primary reasons that the U.S. allows agencies to exercise prosecutorial discretion is because our country has limited resources and must allocate its resources carefully to properly balance its priorities. In many cases, going forward with deportation involves expensive court proceedings, transportation, and other expenses.
Due to the costs involved in the deportation process, following through with every potential deportation case requires more money than the U.S.’s budget allows. Through the use of prosecutorial discretion, ICE can save their time and resources for the most critical deportation cases.
Is It Common to Be Granted Prosecutorial Discretion in Immigration Cases?
Your odds of being granted prosecutorial discretion depend greatly on the current government and ICE policies. The United States president in office and the majority political party tend to impact the availability and use of prosecutorial discretion.
For example, when President Donald Trump was in office, he directed United States officials to deport nearly every undocumented person that ICE or other enforcement agencies encountered. A prosecutorial discretion immigration lawyer NYC can help you learn more about whether prosecutorial discretion might be a plausible option in your case.
How Can I Request That Prosecutorial Discretion Be Exercised in My Case?
If you are currently in deportation proceedings, you can ask for prosecutorial discretion to be exercised in your case at any time. However, it is crucial to first speak with a prosecutorial discretion immigration lawyer NYC before initiating this request.
When requesting prosecutorial discretion, it is typically better to submit your request earlier rather than later in the deportation process. The reason for this is because ICE officials are more likely to exercise prosecutorial discretion early in the process so that they can avoid wasting resources.
Since each United States government agency has its own procedures for handling prosecutorial discretion requests, it will be easier to navigate this process if you hire a prosecutorial discretion immigration lawyer NYC to represent you. Your prosecutorial discretion immigration lawyer NYC will already be familiar with the procedures that you must follow for your case.
What Do I Need to Include with a Request for Prosecutorial Discretion?
Generally, a request for prosecutorial discretion should include the following information and documentation:
What Changes Were Made to Immigration Policies Under the Biden Administration?
Since President Joseph Biden took office, some changes have been made to policies and the general approach taken by government agencies when it comes to deportation and prosecutorial discretion. Under the immigration policies of the Biden Administration, a greater focus has been placed on undocumented individuals who pose a significant risk to the country.
1.The Tae Johnson Memorandum
In February of 2021, the Biden Administration issued a memo containing interim guidance regarding civil enforcement priorities. It reaffirmed the priorities of the Obama Administration, which included a focus on public safety, border security, and resolving threats to national security.
Additionally, enforcement of deportation cases that fall outside of those priorities required prior approval. The Biden Administration has also made it clear that immigration enforcement was inappropriate at courthouses, hospitals, and other sensitive locations.
Texas and Louisiana challenged these guidelines issued by the Biden Administration and filed suit. Since this time, there have been revisions and updated memos seeking to clarify the circumstances in which prosecutorial discretion is used in immigration matters.
2.The Mayorkas Memorandum
While the lawsuit challenging the guidelines was pending, an updated memorandum containing guidance for the use of prosecutorial discretion in deportation cases was issued on September 30, 2021. This memorandum contained similar guidance; however, it did not limit the priority of threats to public safety to individuals convicted of aggravated felonies. Rather, the threshold was changed to anyone engaged in “serious criminal conduct.”
The factors to consider when determining if a person’s actions constitute serious criminal conduct in this context include:
All of the above factors were to be considered in order to determine if serious criminal conduct occurred such that the matter was now a priority for enforcement. However, even if an individual’s actions qualified as serious criminal conduct, the Mayorkas Memo directed ICE agents to consider mitigating factors prior to taking any enforcement action. These mitigating factors included:
3. The Doyle Memorandum
The latest memorandum on the topic of how and when government attorneys should exercise prosecutorial discretion in removal proceedings to follow the Department of Homeland Security’s enforcement priorities was issued on April 3, 2022, by Kerry Doyle, United States Immigration and Customs Enforcement Principal Legal Advisor. This memo is referred to as the Doyle Memorandum, and it took effect on April 25, 2022.
The Doyle Memorandum does not substantially differ from the Mayorkas Memorandum; however, the Doyle Memorandum applies only to OPLA, whereas the priorities set by the Mayorkas Memorandum apply to all components of the Department of Homeland Security, including Customs and Border Protection (CBP), United States Citizenship and Immigration Services (USCIS), and ICE.
What Is the Current State of Prosecutorial Discretion Under the Biden Administration?
In June of 2022, a judge for the U.S. District Court for the Southern District of Texas issued an order vacating the immigration enforcement guidance set forth in the Mayorkas Memorandum. The ruling was based on the court’s findings that the Mayorkas Memorandum was issued contrary to two mandatory detention statutes, and that the Memo violates the Administrative Procedure Act. If you have additional questions regarding this recent court ruling, contact a prosecutorial discretion immigration lawyer NYC for assistance.
Can United States Immigration Agencies Be Ordered to Exercise Prosecutorial Discretion?
Generally, government agencies exercise prosecutorial discretion on a case-by-case basis. However, an agency can be directed to grant or refuse prosecutorial discretion by an executive action. Prosecutorial discretion opportunities can also be authorized through specific programs, such as Deferred Action for Childhood Arrivals (DACA).
Do I Need to Hire a Prosecutorial Discretion Immigration Lawyer NYC?
While you can make a request for prosecutorial discretion on your own without a lawyer, hiring a prosecutorial discretion immigration lawyer NYC can make the process easier for you. Having an experienced immigration attorney on your side can make the difference between having your request granted or denied.
The immigration attorneys at Feiner & Lavy, P.C. are here to help you with your request for prosecutorial discretion, along with any other immigration-related matters. Our team has decades of experience in helping people avoid deportation through the use of prosecutorial discretion.
We know just how important it is for our clients to succeed in their immigration cases, and our dedicated team works hard to fight for positive results in every case. Contact us today to learn more about how a prosecutorial discretion immigration lawyer NYC can help you with your legal needs.
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