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How Does Prosecutorial Discretion Affect Illegal Aliens in Removal Proceedings?

In my blogs, I’ve written about some of the challenges to immigrants facing removal proceeding. Anything negative history that brings an immigrant to the attention of Immigration and Customs Enforcement (ICE) could potentially result in the initiation of the deportation process.

Triggers for a Notice to Appear for removal proceedings would be an interaction with the federal government such as filing for naturalization or other immigration benefit, or after an arrest or conviction for a serious crime, or even for something as minor as a traffic stop. Recently, several states have enacted laws that are causing many more immigrants to come to the attention of ICE–laws that require state and local law enforcement to refer people to ICE if they suspect them to be here illegally, even if they have done nothing that would normally draw ICE’s attention.

The result has been a flood of cases that are clogging the courts and overloading the ability of the system to function. Trying to combat this problem, the Obama administration has expanded it use of “prosecutorial discretion” in choosing which cases to actively prosecute. This means that some people who might normally face deportation are being offered an alternative that can allow them to stay in the United States under whatever legal status they possessed before coming to the attention of ICE. This alternative is known as “administrative closure” of the case where the government stops pursuing your deportation, although the case itself is neither dismissed nor permanently terminated. But as the beneficiary of an administrative closure, remain out of status and continue to accumulate unlawful presence.

In many ways, this is a fantastic development for people at risk of being deported but it brings some serious challenges. While it may seem like a “no-brainer” to accept the government’s offer of “administrative closure,” it is not always in your best interest. A closure due to Prosecutorial Discretion bestows no immigration benefits on the undocumented. In most cases, the beneficiary of prosecutorial discretion would not qualify for work authorization, legal permanent residence or other immigration benefit. There are some cases in which this decision can make it much more difficult for you to later obtain work authorization or to apply for asylum. It is possible that is the facts are in your favor, you might be better off proceeding through the removal hearing process, because if you prevail, your may be entitled to legal permanent residence. Only an experienced immigration attorney can help you decide if it makes sense to accept an offer of administrative closure.

Because immigrants facing deportation are not entitled to a public defender, many people face their hearing on their own (pro se) and most are not aware of the Administration’s “prosecutorial discretion” program and don’t know how to determine if it is a good thing to pursue. As a result, many people are asked to make a decision that can affect the rest of their lives without the help of an attorney to advise them. Existing immigrant advocacy groups cannot cope with the volume of immigration cases and are often not able to act quickly enough to help immigrants take advantage of an offer of administrative closure.

In the interest of justice and equality, the long run solution to this problem is to make sure that all people facing deportation have access to information about the “prosecutorial discretion” program. But in the mean time, it has never been more important to have an experienced immigration lawyer at your side as you make decisions that can change the entire course of your family’s life.

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