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Understanding Updates to Prosecutorial Discretion

Understanding Updates to Prosecutorial Discretion


If you currently reside in the U.S. but do not have legal immigration status, you may be wondering how recent changes to immigration enforcement priorities and prosecutorial discretion will affect you. At Sverdloff Law Group, we are constantly monitoring immigration policy updates, and our team is happy to provide guidance on this important issue.

What is Prosecutorial Discretion?

U.S. Immigration and Customs Enforcement (ICE) is the agency responsible for pursuing and prosecuting people who violate U.S. immigration laws. Due to limited resources and the overwhelming number of cases, ICE must focus its efforts on cases that are deemed enforcement priorities. For cases that are not considered an enforcement priority, the prosecuting attorney may choose to cancel or dismiss a pending immigration court case or decline to reopen a closed case. This choice not to pursue a case is known as prosecutorial discretion (PD).

Recent Actions on Enforcement Priorities

In the fall of 2021, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas issued new, more narrow guidance on which cases ICE should consider priorities for enforcement. ICE officials built on this guidance by issuing an official memo in April 2022 providing details on when and how the government’s prosecutors should use prosecutorial discretion to cancel, dismiss, or otherwise choose not to pursue an immigration case if it was not an enforcement priority.

On June 10, 2022, a U.S. District Court judge vacated the new enforcement guidelines, meaning they would no longer be valid. At the time of this post, an appeal of the order is still pending. The new enforcement guidelines are currently not in effect, but this could still change.

While the change in enforcement priorities may reduce some opportunities for PD created by the April memo, it is important to remember that ICE attorneys are still free to close or dismiss cases as they see appropriate. Immigrants who believe they are a good candidate for requesting prosecutorial discretion should speak with a qualified immigration attorney.

Who is Eligible for Prosecutorial Discretion?

ICE’s memo details several factors that should be considered, either positively or negatively, when determining whether or not to grant PD. While the memo is currently not being enforced, immigrants petitioning for PD should still consider these factors to have the same positive or negative impact on their request. Positive factors may include:

  • Military service
  • Family and community ties
  • Length of time in the U.S.
  • Current immigration status
  • Eligibility for immigration relief
  • Humanitarian concerns, like age or poor health
  • and more

Providing care or support to a close relative with a serious medical condition is one example of family ties that can result in a successful request for PD. At Sverdloff Law Group, we helped one client, an Indian national who was removed, to have his case dismissed because his daughter, a U.S. citizen, has Spina Bifida.

Criminal convictions, on the other hand, are included as a negative factor. However, ICE attorneys are instructed to consider the nature of the conviction, when it occurred, and any other extenuating circumstances. This means that not all criminal convictions will exclude you from prosecutorial discretion.

How Can an Immigration Attorney Help?

Decisions about prosecutorial discretion are made on a case-by-case basis. The best way to determine if you may be eligible for PD is to have your case reviewed by a knowledgeable immigration attorney. Your lawyer can assist you in documenting any positive factors in favor of granting PD and work to minimize the impact of any negative factors. It will ultimately be up to the ICE prosecutor to decide whether or not to pursue your case, but a skilled attorney can help you present the strongest possible argument in your favor.

Contact Sverdloff Law Group Today

If you are facing an immigration court case or living in fear of being arrested because of your undocumented status, help is available. Talk to one of our compassionate, experienced Chicago immigration attorneys today to learn more about how we may be able to assist you.


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