THERE is more great news for people who are in deportation/removal proceedings, or who may have already been ordered deported. The Department of Homeland Security (DHS) recently issued Standard Operating Procedures (SOP) on how to request prosecutorial discretion (PD) for those who are in deportation or removal proceedings.
What is prosecutorial discretion? According to the SOP, prosecutorial discretion is “the longstanding authority of an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual.”
In this case, the Office of Principal Legal Advisor, or OPLA (which are the government attorneys charged with pursuing deportation or removal proceedings), can use their discretion on whether to pursue deportation proceedings against certain people, or even to drop or dismiss existing deportation cases. PD can include such things as agreeing to continuances, joining in a noncitizen’s motion to the immigration court, or even agreeing to dismiss a pending case.
The SOP lists several factors OPLA attorneys may consider in deciding whether to exercise prosecutorial discretion:
- length of residence in the U.S.
- U.S. military service, either by the noncitizen or their family members
- family or community ties in the U.S.
- circumstances of the person’s arrival in the U.S. and the manner of his or her entry. Did they enter as a visitor and overstay? Did they enter through fraud? Did they cross the border without inspection?
- prior immigration history
- work and education history in the U.S.
- the person’s status as a victim, witness, or a plaintiff in civil or criminal proceedings
compelling humanitarian factors including:
– serious medical condition
– age
– pregnancy
– status as a child, and
– status as a primary caregiver of a seriously ill relative in the U.S.
There also could be hope for those who have been charged or convicted of a crime, depending on the circumstances. This applies to those who may be out of status, or even to green card holders who committed crimes after getting their green cards and are now in deportation. Some factors that would be considered include:
- the extensiveness, seriousness, and recency of the criminal activity
- evidence of rehabilitation
- the time and length of the sentence imposed, if any
- the length of time since the offense or conviction occurred, and
- whether they committed additional crimes that might demonstrate they pose a threat to public safety.
The SOP further details how to submit a request for prosecutorial discretion. However, I have to emphasize that this is something you should not try to do on your own. You should first consult with an attorney who can evaluate your case and circumstances to determine whether you have a good case for seeking prosecutorial discretion and can help gather appropriate evidence and documents, and package the case for submission to the OPLA attorneys.
This is great news and anyone who is potentially eligible should consult with an attorney to determine their eligibility. The Biden administration has a completely different attitude than Trump, where the government practically refused to exercise any discretion and wanted to deport everyone.
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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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