What is Prosecutorial Discretion in Immigration Court?
If you do not qualify to file a Motion to Reopen with the Immigration Court, you may apply for discretionary relief from ICE. In certain situations, circumstances arise that cause the government attorney to exercise his or her discretion and close or terminate the deportation/removal proceedings against an individual. In some cases, if you receive relief through prosecutorial discretion, you may be eligible for work. To request prosecutorial discretion, you must apply in writing and submit evidence to the Department of Homeland Security.
There are two types of discretionary relief applications available:
- Stay of Removal, and
- Deferred Action (including Deferred Action for Childhood Arrivals)
If you are a granted discretionary relief, Immigration and Customs Enforcement (ICE) agrees not to deport you during the time specified on your stay of removal or deferred action. It is important to note that both of these forms of discretionary relief can be terminated by ICE at any time. For example, if you are convicted of a crime after being granted this relief, it is extremely likely that ICE would terminate your stay of removal or deferred action.
Can I Obtain a Stay of Removal?
ICE allows stays of removal with their discretion, which means that they evaluate circumstances on a case by case basis. You can submit an application request for a stay of removal. Along with the application, you should include supporting evidence showing why you need or wish to remain in the U.S. for additional time. ICE can stay your removal for a maximum of one year. However, the stay can be renewed an indefinite amount of times. If your stay is granted, you will be placed on an Order of Supervision, meaning that ICE may require you to “check in” with it occasionally. People granted a stay of removal are allowed to remain in the U.S. for the amount of time authorized by ICE and can even apply for a work permit. For help in making your case for a stay of removal, contact our experienced Los Angeles immigration attorneys.
Can I Obtain Deferred Action?
Deferred action is typically granted when there are compelling humanitarian considerations that merit giving you additional time in the United States. Deferred action is similar to a stay of removal in that it you request it directly from ICE, it is applicable for a short time, and you may apply for work authorization. For example, if you or a close family member is seriously ill and can only receive proper medical treatment in the U.S., you may have a good case for deferred action. Deferred action can be granted for up to two years at a time, but like a stay of removal, it can be renewed indefinitely. Removal proceedings are very intensive and procedural, and every little detail matters. It is important that you have experienced legal counsel.
Relief from Removal through Deferred Action for Childhood Arrivals
The Department of Homeland Security has created a program to allow certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.
Individuals who can demonstrate through verifiable documentation that they meet these guidelines will be considered for deferred action. Determinations will be made on a case-by-case basis under the guidelines set forth by the Secretary of Homeland Security.
Immigration issues are very time sensitive. It is important to file your application if you are eligible for prosecutorial discretion under Deferred Action for Childhood Arrivals (DACA) program with USCIS as early as possible in the removal proceedings.
For confidential and expert legal advice, call or email our Los Angeles immigration attorneys.
Am I eligible to apply for DACA?
In order to be considered for deferred action for childhood arrivals, you must submit evidence, including support documents, showing that you:
- Were under the age of 31 as of June 15, 2012;
- Came to the United States before reaching your 16th birthday;
- Have continuously resided in the United States since June 15, 2007, up to the present time;
- Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
- Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
- Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and;
- Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
These guidelines must be met for consideration of deferred action for childhood arrivals. USCIS retains the ultimate discretion on whether deferred action is appropriate in any given case. Read more about the Deferred Action for Childhood Arrivals program in our section here.