In the first few weeks after President Joe Biden was inaugurated, the new administration issued a series of executive actions, as well as the interim guidance on immigration to overturn Trump administration policies and chart a new path on immigration. These actions are in addition to the administration’s endorsement of broad immigration reform legislation that would provide a pathway to citizenship for most of the undocumented population.
On January 20, 2021, former Acting Department of Homeland Security (DHS) Secretary David Pekoske issued a department-wide memorandum, Review of and Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities with wide-ranging implications on immigration enforcement policy. On February 18, 2021, Acting Immigration and Customs Enforcement (ICE) Director Tae Johnson issued interim guidance specific to removal priorities for ICE in support of the Pekoske memo, Interim Guidance: Civil Immigration Enforcement and Removal Priorities.
While the interim guidance has not been finalized, it is anticipated that in the next few weeks there are going to be some major changes in the immigration enforcement guidance. One of these anticipated changes is the return of the Prosecutorial Discretion (PD).
This article discusses Prosecutorial Discretion and how it may potentially benefit you in the future if it becomes available again.
What is Prosecutorial Discretion?
Under U.S. immigration law, Prosecutorial Discretion 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. Or, ICE might agree to ask an immigration judge to reopen your case so that you can apply for relief from removal.
ICE decides on a case-by-case basis whether or not to exercise PD in a particular case unless directed by an executive action or if PD is authorized through a specific program with a separate application process, such as Deferred Action for Childhood Arrivals (DACA).
Benefits of Obtaining Prosecutorial Discretion
If you are in deportation proceedings in immigration court, and are able to apply for PD, the obvious benefit is that it might mean that you will not be deported and your immigration court case will be closed at least temporarily.
But you will not automatically receive other immigration benefits—such as work authorization—just because you receive PD. Instead, you will have to independently qualify for any immigration benefit that you request. For example, if you have already applied for asylum before an Immigration Judge (IJ), are awaiting a hearing or decision, but then request and receive a form of PD called “administrative closure” (meaning the IJ takes your case off of the court calendar for months or years) you might be able to get work authorization based on your “pending” (undecided) asylum application.
WhyProsecutorial Discretion Is Not Always the Best Option
Because the benefits of PD can be limited, it is sometimes better to fight removal in immigration court or file an appeal.
However, figuring out whether or not you can win your immigration case, avoid deportation, and receive immigration benefits can be complicated. Therefore, before deciding whether PD is right for you, it’s a good idea to talk to a well-qualified immigration attorney.
Can I apply for Prosecutorial Discretion now?
Not yet, but there is hope that Prosecutorial Discretion will return and become available in the next few weeks.
Contact The Law Firm of Anna Korneeva to discuss your case and whether PD is something that may benefit you and your case.
Call today at (513) 334-3008 to schedule a consultation.
