by: Hedwin Salmen-Navarro
Prosecutorial Discretion is an Immigration Benefit that has been an option for the undocumented in the past but after June 17th 2011 it will benefit many more in the future. What is prosecutorial discretion? The prosecutor has the power to be strict and severe to enforce the laws or can be lenient in the application at his convenience.
For several years the government concentrated more on the compliance and enforcement part of immigration laws rather than enacting laws than enacting Immigration Benefits or Reliefs. They have not even enacted benefits for those who for example entered the United States as minors, graduated Grammar School and High School but unfortunately cannot attend College because they are undocumented and/or because their parents cannot afford to pay for College Tuition . The problem of congestion of the system is extraordinary. ICE (immigration police) does not have enough man power to execute the deportation of thousands of undocumented foreign nationals and the Immigration Court has a waiting time for final trials of over 3 years. In one day an Immigration Judge is expected to hear around 20-25 Master Calendar’s (Preliminary Hearings).
A Memorandum issued on June 17th 2011 provides “U.S. Immigration and Customs Enforcement (ICE) personnel guidance on the exercise of prosecutorial discretion to ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities. The memorandum also serves to make clear which agency employees may exercise prosecutorial discretion and what factors should be considered”
Some of the factors that the Memorandum lists as factors to be considered are:
The person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
The circumstances of the person’s arrival in the United States and the manner of his or her entry, particularly if the alien came to the United States as a young child;
Whether the person or the person’s spouse suffers from severe mental or physical illness;
The Memorandum also lists what ICE may do in the event they decide to use prosecutorial discretion over a foreign national. ICE may agree to voluntary departure, withdraw an application for admission, not executing an already issued removal order by an Immigration Judge, granting temporary status due to foreign nationals impossibility to return to his/her country of origin.
Even though this discretion does not confer what many undocumented foreign nationals want and need, a Lawful Permanent Resident Card but it at least in a certain way it grants this relief to those who have other than their Immigration Violations, been a model citizen, a person who has conducted him/herself as a person of good moral character. As always, please consult with a Licensed Attorney if you’re interested in applying for this discretion.
