if you have received a Notice to Appear, a charging document that notifies you that you are facing deportation, it is important to understand your options. This article is for information purposes and is not legal advice. If you need legal advice, please consult with a qualified attorney.
Individuals who are facing deportation may be able to get relief and have the case dismissed under certain circumstances. Under current regulations, the attorneys for Immigration and Customs Enforcement (ICE) can dismiss cases that they deem to be “non-priority.” This is called prosecutorial discretion.
Many factors go into determining whether an individual is eligible for prosecutorial discretion. These include how long they’ve been in the United States, whether there are family members here, and whether they have a criminal background. However, there are no strict guidelines to determine who will be granted prosecutorial discretion. It is determined on a case-by-case basis.
How is Prosecutorial Discretion Used?
Prosecutorial Discretion was established to help manage the large number of deportation cases in the U.S. It was created to allow ICE to focus on priority cases. This would include cases in which the individual would be considered a threat to the U.S. or its citizens.
When an individual is facing deportation, they can apply for prosecutorial discretion. If it is granted, the individual will be allowed to remain in the U.S.
OPLA Attorneys who represent ICE can use prosecutorial discretion on their own to dismiss a case or an individual facing deportation may request that they be considered for prosecutorial discretion. If you need help understanding your rights, contact Nancy Norman for immigration legal services.
How Do I Know if I am Eligible for Prosecutorial Discretion?
The guidelines around who is eligible and who is not are in flux. There are ongoing court cases around clarifying the rules. However, while those cases are pending, prosecutorial discretion remains an option.
It is important to note that this is an evolving area and is expected to continue changing. We are available to help you navigate your immigration case. When you consult with us, we will ask you a lot of questions about your current situation to fully understand all the relevant facts in your case.
Prosecutorial discretion is decided on a case-by-case basis. That means the OPLA attorneys will look at your specific circumstances to make a determination.
Positive factors include such things as having family members in the United States, community ties, having lived in the U.S. for a long time, and having options for other types of relief/benefits. Negative factors include having a felony or several misdemeanor convictions and gang affiliation. These are just examples of what OPLA Attorneys may use in making a decision.
What Happens When Granted Prosecutorial Discretion is Granted?
The advantage of being granted prosecutorial discretion when you are facing deportation is that the deportation order will be vacated. That means you would be allowed to stay in the U.S.
There is a concern that if prosecutorial discretion is granted, the respondents who had been seeking permanent residence, naturalization, or another citizenship status may lose all their progress when their case is dismissed. So, although dismissal under prosecutorial discretion allows for non-citizens to remain in the US legally, it can strip them of benefits or potential status changes.
When we meet with you, we will discuss what could happen and determine with you the best next steps.
Terms to Know
Although understanding these policies may appear overwhelming, it is important to have an idea of what may happen in your case. A good place to start is by simply understanding the legal terms most frequently used. Here are a few helpful definitions:
- DHS (Department of Homeland Security): A federal agency designed to protect the United States of America from threats. They work to prevent terrorism, secure the borders, administer immigration laws, and respond to natural disasters.
- ICE (Immigration and Customs Enforcement): The police of DHS who administer humane detention as well as prevent terrorism and the illegal movement of goods and people.
- OPLA (Office of the Principal Legal Advisor): Serves as the representative of DHS in all immigration removal proceedings.
- USCIS (United States Citizenship and Immigration Services): A department of DHS, USCIS oversees legal immigration or visitation to the US and grants benefits to individuals seeking asylum, resident status, or naturalization.
- NTA (Notice to Appear): Charing document that notifies an individual to appear in front of an immigration court (the first step of removal proceedings).
- EAD (Employment Authorization Documentation): Proof of authorization to work in the US. An EAD is an example of a benefit to a pending asylum or permanent resident application.
- PD (Prosecutorial Discretion): The right for OPLA attorneys to prioritize cases of their own choosing and dismiss those cases which they classify as non-priority and wish to remove from the immigration court docket.