How to Submit a Request for Prosecutorial Discretion

Noncitizens at risk of deportation may submit a request for prosecutorial discretion (PD) to be used as temporary protection against removal. PD refers to the power granted by U.S. immigration agencies, including ICE, CBP, and DHS, to discontinue working on a deportation case. Before submitting a request for prosecutorial discretion, you should first review your specific case with an attorney.

When is Prosecutorial Discretion Used?

In the context of U.S. immigration law, U.S. immigration agencies may exercise PD on an individual case basis to handle and litigate removal cases before the Executive Office for Immigration Review (EOIR). PD is used according to the discretion of the Chief Council and guidance from DHS to determine whether to pursue immigration enforcement, such as deportation, in a given case. 

By exercising PD, OPLA can determine how to exhaust their finite resources on undocumented immigrants, therefore granting specific stipulations such as administrative closure, continuances, or joining motions to dismiss or reopen a proceeding. Noncitizens may also submit a request for PD to OPLA. 

Submitting Your Request

OPLA or DHS attorneys routinely review cases without a request. Individuals in removal proceedings who are before EOIR do not need to submit a request for PD to be exercised; typically there is no specific form to complete. Any noncitizen in the U.S. who does not have lawful immigration status may be granted PD. However, if you would like to submit a request, do so at the earliest opportunity in the removal process and include positive, convincing information:

• A detailed statement outlining the reasons your case deserves PD and describing the advantages
• A personal statement that summarizes why your case warrants PD and ideally shows that you have never been convicted of a crime in the United States or elsewhere. 
• Evidence demonstrating the positive factors of your case, such as your relationships with U.S. citizens, and
• Documents of FBI or state background checks or police clearance letters from all cities you’ve lived in. 

There is no strict formatting required when filing a PD request. However, mention the type of PD you are seeking and include the circumstances that you want to be considered in the assessment. Individuals submitting a request for PD are not required to pay fees since OPLA does not charge a filing fee to process or consider requests for PD. Generally, you will need to provide a current criminal history check and fingerprints to request a dismissal of removal proceedings. If the DHS has records of your biometrics, you may not be requested to complete a fingerprint-based background check for the FBI, although submitting one may facilitate a faster final decision.  

Procedures for requesting PD vary by U.S. Immigration Court location, so your first step is to contact an attorney, who will then explain how to submit your request. It is important that undocumented immigrants do not contact ICE directly, but rather work with a lawyer throughout the process. If ICE rejects your request for PD, you can send another request, although you will want to review your case with an attorney beforehand to increase the chances of approval. 

Contact an Immigration Attorney Right Away

If you are interested in submitting a request for prosecutorial discretion, review your case with the experienced attorneys at the Sverdloff Law Group. Call now to schedule a consultation.