Prosecutorial discretion: Amnesty or leniency?

There has been much discussion and confusion over the recent policies and memoranda from U.S. Immigration and Customs Enforcement (ICE) concerning “prosecutorial discretion.” Some people mistakenly believe that it is some sort of “amnesty.” Consumer alerts are going out to the immigrant community, warning about unscrupulous notarios and immigration consultants who are trying to trick people into believing that this is an amnesty, and they can somehow “apply” for prosecutorial discretion, obtain work authorization, or even get a green card.

Let me set the record straight: prosecutorial discretion is not an “amnesty”. Instead, it means that ICE will start prioritizing the removal (deportation) of criminal aliens and those who pose a threat to public safety and national security, etc., and will not be so “aggressive” in going after (or removing) people who don’t pose such a threat. 

Let me give you an example (or analogy) about prosecutorial discretion: We all know that people who violate the law should be prosecuted or punished. But suppose the police spent all of their time catching and prosecuting jaywalkers, while the murderers, rapists, and robbers were still out there, threatening the safety of the community. There would probably be a justifiable outcry from the community, wondering why law enforcement was spending all of its time and resources going after jaywalkers, instead of focusing on the felons and dangerous criminals. Law enforcement might argue, “But jaywalking is against the law, and these people broke the law. So, we need to prosecute them to the fullest extent!”. In the meantime, the court system is clogged up with jaywalking cases, and there is not enough time or resources to go after and prosecute the really dangerous criminals. You would probably say to law enforcement, “Focus on prosecuting the felons instead of the jaywalkers!”

That is essentially what is now starting to happen with immigration enforcement. In the past, DHS would go after, and pursue removal against every immigration violator, whether or not they posed a threat to public safety, such as a nurse whose Adjustment of Status was denied because she lacked Visa Screen; a worker, whose case was denied because the employer lacked the “ability to pay,” a spouse or parent of a citizen whose case was denied, etc. DHS would immediately issue Notices to Appear (NTA), and put these people in removal. After all, they violated our immigration laws, and are out of status. The new “prosecutorial discretion” policy instructs DHS to prioritize removing the felons and not the “low priority” cases.

This new prosecutorial discretion policy acknowledges that, “it makes no sense to expend our enforcement resources on low-priority cases… DHS enforcement resources must continue to be focused on our highest priorities. Doing otherwise hinders our public safety mission — clogging immigration court dockets and diverting DHS enforcement resources away from individuals who pose a threat to public safety.”

While this is not an amnesty, prosecutorial discretion means that DHS should be “lenient” on certain low-priority cases. I would definitely not suggest that you “turn yourself in” to DHS to find out whether you are deserving of leniency. However, if you are already in removal proceedings, or even have a final order of removal, maybe this new prosecutorial discretion policy could enable you to be considered a “low-priority” case, and perhaps have your removal proceedings administratively closed (or put on the back burner).

If you are in removal proceedings, I would strongly suggest you seek the advice of a reputable attorney, who can analyze your situation, and perhaps negotiate with DHS, that they exercise prosecutorial discretion on your case.      

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