QUESTION: My DACA expires in about seven months. However, what will happen after that? Do I have any other options?
Answer: You do have options, many of which you will need a personal consultation. However, there is what is known as prosecutorial discretion which is still a possibility.
Question: What exactly is prosecutorial discretion?
Answer: “Prosecutorial discretion” is the authority of an agency or officer to decide what charges to bring and how to pursue each case. A law-enforcement officer who declines to pursue a case against a person has favorably exercised prosecutorial discretion. It is essentially a packet which argues why you should not be deported.
Question: When can I apply for prosecutorial discretion?
Answer: Prosecutorial discretion may be exercised at any stage of an immigration case.. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order. Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a decision to terminate or administratively close removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place.
Question: Who exactly will decide on my prosecutorial discretion packet?
Answer: ICE, USCIS, and CBP officers have the authority to exercise prosecutorial discretion. Because prosecutorial discretion is a process that determines whether the government is going to pursue enforcement in a case, the initial decisions are made by those immigration officers assigned to the case. Once the initial decision is made to issue a Notice to Appear (a document that formally initiates removal proceedings by charging an individual with immigration violations), further decisions about continuing the government’s case will be made at higher levels within ICE or DHS.. The June 2011 Morton memo clarified that the following ICE officers have the authority to exercise prosecutorial discretion: officers, agents, and their supervisors within Enforcement and Removal Operations who have authority to engage in civil immigration enforcement; officers within Homeland Security Investigations who have authority to engage in civil immigration enforcement; attorneys and their respective supervisors within the Office of the Principal Legal Advisor who have the authority to represent ICE in immigration court; and the Director, Deputy Director, and senior staff of ICE. Ultimately, the Secretary of Homeland Security, as the official within the executive branch specifically charged with enforcing the Immigration and Nationality Act, is in a position to exercise prosecutorial discretion over every case. Because DHS now has announced that the Morton memo will apply to USCIS and CBP, there may be further guidance issued clarifying who within these two components has prosecutorial discretion authority.
There are many ways to make the packet more persuasive. Leave time and show all the hardships you can in order to try to get it approved.
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Atty. Brian D. Lerner has been an Immigration Attorney for nearly a quarter of a century. He is married to a Filipina and has helped thousands of Filipino families all over the country. In addition to his offices in Southern California in Long Beach and Carson, he has an office in Quezon City. He is a certified specialist in Immigration and Nationality Law by the Legal Board of Specialization, California State Bar. The initial consultation is free. Call (562) 495-0554 and/or send an e-mail to [email protected].
