What Is Prosecutorial Discretion?

In general, prosecutorial discretion is the authority that an agency or officer has to decide what, if any, charges to bring against a party and how to pursue each case. In other words, it means that an agency can choose whether or not to file charges. In the immigration law context, prosecutorial discretion refers to the Immigration and Customs Enforcement (ICE) office and the power they have to discontinue working on a deportation case. If the office declines to pursue a case, then it means that the office has favorably exercised prosecutorial discretion. Below we discuss the basics of prosecutorial discretion in the context of immigration. What are examples of prosecutorial discretion? When thinking about prosecutorial discretion and immigration, it’s helpful to compare it to the criminal justice system. For example, in criminal law, police officers often decline to arrest people for minor offenses (like jaywalking and even minor drug possession). Alternatively, if a defendant is arrested and charged, prosecutors will often bring lesser charges in order to strike up a plea deal to eliminate the need for a trial. In comparison to immigration, the differences are minimal and ICE similarly exercises discretion in several ways. For example, ICE can decide not to pursue a case by cancelling the charges against immigrants who may be removable. Alternatively, they might decline to oppose an application for relief (i.e. the process by which an an immigrant can remain in the country). Even further, they often decline to remove an immigrant with a formal order of deportation. In order to do this, ICE might ask an immigration judge to close your case or, alternatively, ask them to reopen the case so that you can apply for relief from removal. Unless directed by executive action (i.e. by the White House), ICE generally decides on a case-by-case basis whether or not to exercise their prosecutorial discretion. As part of its review process, DHS sometimes offers immigrants an alternative form of prosecutorial discretion called “administrative closure.” Administrative Closure This is another way ICE exercises prosecutorial discretion. Administrative closure is optional and comes up in a removal proceeding. It means that when a case is administratively closed, then it is removed from the calendars of the Immigration Judge or the Board of Immigration Appeals until one or both parties ask for it to be put back on. However, just because your case has been administratively closed does not mean that you are in the clear. In these situations, an immigrant does not receive any lawful immigration status. Further, the Department of Homeland Security is not likely to grant employment authorization documents (EADs) to immigrants whose cases have been administratively closed unless they would otherwise be eligible. Finally, administrative closure is limited in scope. It is only available to immigrants who are currently in removal proceedings but have not yet received a final order of removal. Therefore, if you have a strong claim for relief it might be a good idea to decline the offer of administrative closure and have your case presented to an immigration judge. An experienced immigration attorney can help you with this decision. Why is prosecutorial discretion exercised? ICE exercises its prosecutorial discretion because, like every government agency, it has limited resources and needs to use those resources carefully. The main priority for deportation involves cases of national security, border security, and public safety. By exercising this discretion, ICE can quickly close some cases that are less significant to those priorities, which saves time and resources for the more relevant and important cases. If you or someone you love has faced prosecutorial discretion or is uncertain about whether to accept an offer of administrative closure, Landerholm Immigration is here to help. Contact us at (510) 491-0291 to speak to our representative and to book your legal consultation today!

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