Asking for Prosecutorial Discretion

Many people who find themselves in removal proceedings do not qualify for an immigration benefit. So how does the person remain in the U.S.? What are their options? For some people, the only option is to ask the Department of Homeland Security for prosecutorial discretion. Asking for prosecutorial discretion means asking the Department of Homeland Security (and ultimately the Immigration Court) to administratively close the case and remove it from the active docket. This means the person won’t have to appear in Immigration Court for now because the case is closed (although the Department of Homeland Security reserves the right to ask the Court to put the case back on the docket at any time). So how do you know if you qualify for prosecutorial discretion? You must have a clean criminal record (no arrests or convictions). You must also have no prior immigration violations (like being removed from the country once before) other than your current illegal presence. In addition, you should try to show evidence of other factors that are favorable to you, such as proof you’ve been in the country for many years; proof you’ve been employed during that time and that you’re currently employed; proof you’ve been paying taxes; proof you have a U.S. citizen or legal permanent resident spouse, child, or parent that depends on you; or proof there is a petition on file for you. Once the request for prosecutorial discretion is made, we generally have an answer from the Department of Homeland Security and the Immigration Court within a month or so. So if you’re wanting to avoid having to attend your next court date, it is best to have a request for prosecutorial discretion made at least a couple of months before the next court date. If you are in removal proceedings and believe that some or all of these factors are in your favor, please contact our office and schedule an appointment to see if you qualify for prosecutorial discretion.