Some cases can be terminated administratively by the immigration judge. This happens when the prosecutor decides to prosecutorial discretion.
These rules are not the first rules of the current administration. Between November and December 2021, the first rules of the current administration focused to help individuals in immigration courts were announced. These new rules differentiated from the previous administration’s ones, when was opted for deportations in most cases.
New current administration rules are giving the prosecutor of each immigration case the way to use their discretion to close cases from the immigration system of people who have demonstrated a nice moral character during their presence in the US.
These rules are similars to the first rules announced by the current administration. They give prosecutors the power to close some cases to help those who are in immigration courts and are trying to prevent deportation.
It is recommended to take advantage of the fact of being under an administration which is actually trying to help people. Under other administrations, many of these ways did not exist. These ways started during a previous administration (2009-2017). Later, under the next administration (2017-2021) these ways, which helped many people stay in the US, maybe not by permanent residence but with a work permit and the possibility to stay in the country with their family, started to be removed.
For certain individuals who were in immigration courts, under the current administration, the green light is being given to prosecutors working for the ICE in order for them to use their discretion and close some cases from the courts.
There will be individuals who will qualify to completely remove their cases from immigration courts. Regularly, these are individuals who don’t have grave felonies. If you don’t have felonies, have family members in the US who have been living in the US for a long time, if you can demonstrate a nice moral character during your presence in the US, or if you have any family member who will suffer if you are deported from the US, you may qualify.
Factors a prosecutor may look into to determine the use of prosecutorial discretion.
There are many things the prosecutor may look into to determine if using prosecutorial discretion. Prosecutorial discretion might mean the case will be terminated or removed from the system. This does not necessarily results in permanent residence, but deportation stops being a risk.
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Link with terrorism
The first thing on being verified is if it’s a common person or a potential danger to the US in terms of terrorism. If an individual is linked to people who have been involved in terrorism, or if it has charges based on terrorism, he/she will not receive any type of prosecutorial discretion.
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Crime file
The second thing on being verified is the crime file, in case it exists. Certain crimes can be severe and affect to the point of not being able to obtain this type of discretion. If an individual has felonies, such as drug possession/trafficking, it is something that can be considered a felony and prevents the person from obtaining discretion. Immigration can use its discretion to see if the positive factors of your case/profile are stronger outrank the negative ones. Among the positive factors that can be taken into account is age. For the youngest, age is not something that will work in their favor, but for those who are more advanced in terms of age; and if this person can suffer extreme difficulties if being deported, are factors that can be positive for those people in immigration courts.
Time of presence at the US
The time of presence in the US too. An individual who has several years living in the country and has had nice behavior can represent a case with better opportunities than the one who has little time in the US.
Health status
The individual’s health is also another factor to be taken into account. If it’s a healthy person who will not be affected in case of deportation, this might represent a negative factor opposite to someone with health issues. Health problems can be mental, or physical disabilities that can affect the person if he/she is deported.
Family members in the US
Family members are another factor. It can be hard to justify the deportation of a single mom who has children who are US citizens, or of a father whose wife is a legal resident and whose children are US citizens. On the other side, it can be easy to justify the deportation and not use prosecutorial discretion in a case of a person who does not have family members in the US, nor citizen children or spouse who can suffer if the person is deported.
There is no rule determining if prosecutorial discretion can be used or not. The prosecutor must study several factors: If it has crimes, the time of presence in the US, if there have been problems with the immigration system; and compare these negative factors with the positive ones, such as age, health status, and if someone will suffer extreme difficulties if the person is deported. Also if the person has family members in the US, such as US citizen children or spouse, parents who are US citizens or legal residents, and other family members in the US.
Consider these cases can extend beyond eight years. There are cases in which, to have a final court with an immigration prosecutor, if getting to that point, from six to eight years can pass; and then comes the appeal time. These cases take long. It is recommended to bear in mind that the current administration will be only for four years, and it is unknown what changes will come with the next one.
If you have an open case with immigration courts, it can be a good idea to look for an immigration attorney. Even if your interview is in a few years from now, it is suggested to take advantage of the current administration giving the green light for prosecutors to use their discretion and close cases if there are these positive factors. Removing the case from the system can be complicated without the help of an attorney.
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