Prosecutorial Discretion

Recently, the Department of Homeland Security released a memorandum changing the Department’s position under the previous administration regarding prosecutorial discretion (PD). The Baltimore and Arlington Immigration Courts and the Office of the Principle Legal Advisor (OPLA), ICE in the Washington and Baltimore offices, have since issued guidelines on how their respective offices will implement the changes. 

PD is exactly what it sounds like: it means the US government may exercise discretion in which immigration cases they choose to prosecute. PD allows the US government to use their resources more efficiently by prosecuting those cases they deem to be a priority, for example, in cases of immigrants with a criminal history or those who pose a threat to national security.  Conversely, PD allows the US government to decline to prosecute those cases that are considered to NOT be a priority.  PD had been a common practice in Immigration Courts to assist the government in prioritizing cases and easing the enormous backlog.

We are very encouraged that PD is becoming available for RILA clients!  In order to be eligible for PD, an immigrant must show they are eligible for a legal status outside the jurisdiction of immigration court and have applied for or been approved for that status. Common examples for RILA clients are children petitioning for Special Immigrant Juvenile Status (SIJS) and immigrants petitioning for T and U Nonimmigrant Status (a special status for survivors of human trafficking and qualifying crimes, respectively). In addition, the US government often requests documents to support a request for PD, such as taxes and letters attesting to the peron’s character.  

For those children who are well on their way to attaining a Green Card (legal permanent residency) through SIJS, the RILA legal staff will be working with the US government to ask the judge for PD on behalf of those children.  If granted, the immigration cases for these children will be terminated. This means they will not have to apply for immigration relief (status) before an immigration judge and risk receiving a removal order.  They will be allowed to wait to receive their Green Cards, without having to remain in removal proceedings.  

PD is a common-sense measure that directs resources where they are most needed.  In addition, it brings relief and lifts a significant burden from SIJS-eligible immigrant children and their families, as well as other immigrants who are eligible.