Prosecutorial Discretion: Election Ploy or Truly Helpful?

Late last year, the Obama Administration announced a new policy known as law which is called Prosecutorial Discretion (PD). We get calls regarding this new policy every day. Here are some basic answers and functional matters people may want to know about the policy.

Basically, what the policy allows is for the government attorney in a removal case (or ICE in a removal matter) to administratively close the pending removal of an alien. Quite simply, when granted, PD closes out a removal or deportation course of action or hearings against a person. The initiative requires the government to review all pending situations before it and allows them to discretionarily close out and grant PD to any situations which may be granted or resolved by other bodies of government, instead of the Immigration Courts. It also allows the government to grant PD in particularly powerful situations and to allow the aliens to keep indefinitely in the United States already if they may no acquire legal position in the near future.

The Immigration estimate has no say in whether Prosecutorial Discretion may be granted. It is solely a decision of the government attorney handling the case (and their office) and/or ICE. The request is made to the government attorney or the ICE office handling the case and not to the Immigration estimate. Sometimes the government attorney may offer PD on his or her own after reviewing an upcoming case.

The policy is not obtainable to every person present in the United States. It is only really obtainable to those who are currently in REMOVAL proceedings before an Immigration estimate or to those who are being deported by ICE. Those who are not in addition in removal proceedings or being deported will have no reason to apply at this time.

No policy or rule has in addition been issued to grant work permission to persons who are granted prosecutorial discretion. As such, persons who are in removal proceedings may be granted PD, but then they are left here in limbo. They do not get a work permit. They do not get a social security card or a driver’s license. As such, to some clients it may be pointless. If they accept PD, they will be losing their chance for long-lasting relief before an Immigration estimate and end up in limbo and without papers or a method to work here.

In practice, PD does not seem to be working. We are being offered PD by the government on situations we know we will ultimately win before the Immigration estimate anyway. For example, we have a client in removal proceedings who has three children born in the United States. The client has been here more than ten years. The citizen children have serious medical and learning disabilities. They are from a country which can not provide for the needs of the children should the alien be asked to leave the US. In short, the client is eligible for Cancellation of Removal before the Immigration estimate. On this case, the government trial attorney called our office and offered PD. in addition, should the client take the offer, he would be left with no way to work or sustain his family. He would have no work permission. He could not travel. He simply would be allowed to stay in the United States and not be bothered by Immigration. He would be in limbo. however, if we proceed with the case before the Immigration estimate, he will get a work permit and if his case is granted, he will receive his long-lasting residency and be able to keep in the United States on a long-lasting basis. The client rejected the offer of PD from the government.

The other negative way in which PD is working is that the government has made up its own policies on when it will and will not offer PD to a client. For example, in a heartbreaking case, a client who is in reinstatement of removal proceedings, having been inadmissible over fifteen years ago and come back over the border, has two US citizen children here: one has harsh Down’s Syndrome. The client was arrested on a minor DUAI case and found himself back before the Immigration estimate. The government denied our request for PD on this case. The client has no other relief and will be deported. His children, although born here, will have to leave the United States to return to a Developing Country with their father, losing all health care and medical sets here in the US as they can not provide to stay here without him. The government’s reasoning for denying the case, as we are told: They do not ever grant PD to any case where there is a DUAI. If the person is released and has another DUI and someone gets hurt, they will look bad for allowing the person to keep in the United States. in spite of that this man pays taxes, has two US citizen children (who will now suffer greatly), and has been here for about 15 years, it is the government’s own made up policy to deny any case where there was a alcohol related offense. One can see how unfair and haphazard this policy is.

In addition, PD is slowing up the Court system in Immigration Court. The Judges are allowing more time to the government to review situations for PD. They are granting adjournments to lawyers to make requests for PD where appropriate. So this effort which was to relieve the Courts of their burden has truly resulted in quite the opposite.

consequently, who is PD helping? Not too many people. In my own opinion, it seems like PD was produced by the Obama Administration because there is an election coming up. The Administration will be accused of reneging on the immigration policy reforms they promised before the last election. Now with the creation of PD the Administration can claim they have taken steps or that they have done “something” to address the immigration issue. In reality, this so-called policy is not really helping anyone. It is simply delaying situations in Court. It is putting people in limbo with no position and just allowing them to stay here in a very small select number of situations. It is not allowing those granted PD the right to work or to earn money or to pay taxes into the system. It is a farce in this lawyer’s opinion.

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