Prosecutorial discretion: When there is ‘no hope’ in removal/deportation proceedings

When a person is placed in removal/deportation, they typically go in front of the immigration judge (IJ) to demonstrate why they should not be deported or removed, such as they are immediately eligible for a green card (through an approved petition by a citizen spouse, or other petition with a current priority date), they are entitled to some form of waiver, etc.

But what if the person is out of status and is deportable/removable and has no form of relief or defense available? There still could be hope through “prosecutorial discretion,” where the trial attorney (TA) could agree or stipulate to administratively close or stop the deportation proceedings. While this does not result in any legal status, the person is at least safe from being deported/removed. It is sort of like a plea for mercy to the prosecutor, and if the person’s “plea” is properly packaged and presented, the TA may be persuaded to exercise prosecutorial discretion.

The theory behind prosecutorial discretion is that the government does not have the resources, time, or money to deport every single person in the US who is out of status. (There are an estimated 11 million people in the US illegally, and there are not enough judges, courtrooms, or funds to go after everyone.) So, the government will prioritize and focus its resources on the really bad people in the US, such as people with criminal records, terrorists, etc. and not spend all their time going after people who overstayed but are otherwise “law abiding.”

The government may, on a persuasively presented case, exercise “discretion” or leniency, and decide not to pursue removal proceedings against a person, based on several listed factors. The government can exercise prosecutorial discretion “at any stage of an enforcement proceeding,” even if the person already has an order of deportation, or the case is on appeal to the BIA. But the earlier in the proceeding you request prosecutorial discretion, the better.

My office has handled many removal cases where the client really had no form of relief, but we convinced the government to exercise prosecutorial discretion and prevent the person’s removal. While I cannot “guarantee” the government would exercise prosecutorial discretion in your case, if you have no other defenses or forms of relief, at least prosecutorial discretion could be your “last hope” when there is “no hold” in your situation.

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