Understanding Prosecutorial Discretion in Immigration Court

One important, yet not often highlighted, area of immigration policy under the Biden Administration has been a change in enforcement priorities for referring foreign nationals to immigration court proceedings, referred to as “prosecutorial discretion.”

Immigration and Customs Enforcement (ICE) sets priorities in allocating its resources, so using prosecutorial discretion can help the government focus on cases that affect national security and public safety. For example, under the Obama Administration, ICE offered prosecutorial discretion to most foreign nationals who did not have a criminal record or a history of terrorism, who had not been ordered removed already, and who did not attempt to cross the border unlawfully. Under the Trump Administration, however, the government disfavored prosecutorial discretion and used a more restrictive approach. The Biden Administration has once again expanded prosecutorial discretion and focused enforcement efforts on individuals who do not have a criminal record and do not pose a threat to national security.

Prosecutorial discretion usually occurs on a case-by-case basis. With prosecutorial discretion, the Department of Homeland Security (DHS) may be willing to terminate a foreign national’s removal proceedings or reopen a case after a removal order so that the individual may seek an immigration benefit or relief. In addition, prosecutorial discretion does not grant permission to work in the U.S. unless you qualify for employment authorization independently.

If a foreign national is in immigration court proceedings and does not have a strong claim for relief in court, then requesting prosecutorial discretion may be a good option. Foreign nationals in removal proceedings can have their case dismissed in order to pursue another form of relief with USCIS. Even if a foreign national in removal proceedings does not have other options for relief, but does not have a strong claim for relief in court, he or she may still want to pursue prosecutorial discretion in order to avoid the immediate risk of deportation.

A foreign national may request prosecutorial discretion at any time while in immigration proceedings; however, it is usually more persuasive earlier in the process, since it will save valuable government resources. If you have a pending immigration court case, it is always a good idea to discuss your options, including prosecutorial discretion, with a qualified immigration attorney.

The upcoming presidential election will significantly affect immigration enforcement. Those in removal proceedings should consult with their attorney to see if they can benefit from the current policies.