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Prosecutorial Discretion

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What is Prosecutorial Discretion?

The first thing you should know is that prosecutorial discretion is that it isn’t a form of relief like cancellation of removal, asylum, voluntary departure, etc.  – You won’t find a law in the United States Code or the federal regulations entitled “Prosecutorial Discretion.”

In immigration court, prosecutorial discretion is basically the authority of the ICE attorney to decide whether and to what degree he or she is going to enforce the immigration laws of the U.S. against you. When you and your lawyer ask the ICE attorney to “exercise prosecutorial discretion,” you are asking the ICE attorney not to do everything he or she could do to get you deported from the U.S and consider other alternatives available. In practice, there are different kinds of

What are the Different Kinds of Prosecutorial Discretion that are Applicable in Immigration Court?

Prosecutorial discretion in immigration court comes in many forms. However, a few examples of the things an ICE attorney can do as a matter of prosecutorial discretion include:

  • Joining in a motion to terminate your case
  • Joining in a request for administrative closure
  • Agreeing to voluntary departure

How Can I Get Prosecutorial Discretion in Immigration Court?

In essence, there are no formal requirements as such that can let you receive a favorable exercise of prosecutorial discretion from the ICE attorney. Additionally, you should also understand that the ICE attorney never has to afford you a favorable exercise of prosecutorial discretion. If you have broken immigration laws of the U.S., the ICE attorney can actually choose to argue in favor of your deportation.

However, if you have certain positive factors that work in your case there is a good chance that the ICE attorney will agree to a favorable exercise of prosecutorial discretion in your case.

Factors that Can Help you Attain Prosecutorial Discretion in Immigration Court

Here is a list of some of the factors that might cause the ICE attorney to exercise prosecutorial discretion in your favor:

  • Residency – You have long term presence in the U.S. (especially as a lawful permanent resident)
  • Age – You are an elderly individual
  • Period of Stay – You were brought to the U.S. as a young child
  • Academic Record – You have evidence of educational pursuits (high school, college, etc.)
  • Military Links – You or an immediate relative have served in the military (especially combat)
  • Personal Dependency – You are a pregnant or nursing woman, spouse, child, or parent
  • Health Conditions – You have severe mental or physical illness, or have a close relative who is a U.S. citizen or resident and has such illness
  • Being a Victim of Crime – You are a victim of domestic violence, human trafficking, or other crimes
  • Federal Services – You have cooperated or are cooperating with federal, state, or local law enforcement authorities (ex: serving as a witness informant, etc.)

While none of these factors will absolutely guarantee a favorable exercise of prosecutorial discretion in your favor, having one or more will certainly help improve your odds. Contact a Charlotte criminal attorney for more information in this regard.

What Factors Can Go Against You for Getting Prosecutorial Discretion in Immigration Court?

On the other hand, there are also certain factors that can hurt your chances of getting prosecutorial discretion in court. Those factors include, but are not limited to:

  • Past Criminal Record – You are a serious felon, repeat criminal offender, or have a lengthy criminal record;
  • Threat to Public Safety – You are a known gang member or other person who is a clear danger to public safety;
  • Immigration Violation – You have a bad record of immigration violations, such as multiple illegal entries into the U.S. or immigration fraud.

Contact Johnson & Nicholson Attorneys today for Legal Representation

We at Johnson & Nicholson have a consistent track record of helping immigrants make the right legal choice at the right time.

Contact a Charlotte immigration attorney today to learn more Prosecutorial Discretion.

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