How Do I Qualify for Prosecutorial Discretion in My Immigration Case?

In many cases, pursuing prosecutorial discretion is a last-ditch effort to avoid being removed from the country. This pursuit asks the United States Immigration and Customs Enforcement use its discretion to the benefit of the immigrant.

Purpose of Prosecutorial Discretion

The purpose of prosecutorial discretion in this context is to help ICE to pursue the cases and use its resources that put the country at the greatest degree of risk. Like every governmental agency, ICE has limited resources at its disposal. Prosecutorial discretion helps ICE to focus on the cases that have the greatest impact.

Recent History of Prosecutorial Discretion

In July 2011, John Morton, the director of ICE at the time, sent an internal memo to all ICE officials, asking them to utilize their discretion in cases. The memo emphasized the need for ICE officials to focus on cases that would promote national security, promote border security, promote public safety and maintain the integrity of the immigration system.

Shortly thereafter, on August 18, 2011, the Department of Homeland Security revealed that it would establish new guidelines across all immigration agencies to ensure that it was most heavily enforcing cases that involved the removal of individuals who posed the greatest risk to the country. Additionally, the Department of Homeland Security stated that it would allow individuals in low-priority cases to request prosecutorial discretion. Additionally, the department created a joint committee with the help of the Department of Justice to review cases that involved individuals who were in removal proceedings to determine which cases were high priority and which were low priority.

Ways that Prosecutorial Discretion Can Be Used

Prosecutorial discretion means different things in different cases. In some cases, prosecutorial discretion may be utilized by cancelling a notice of detainer or notice to appear, dismissing a proceeding, granting deferred action or joining in a motion to grant relief.

Low Priority

One way to be qualified for prosecutorial discretion is to demonstrate that you are part of a low-priority case that should not be pursued because there are higher priority cases that require ICE’s attention. Low priority cases were also identified in a Morton memo dated June 17, 2011. These cases involve individuals who have been detained who are not criminals, individuals who have been in the United States since they were children, individuals who are veterans or relatives of veterans, individuals who have serious health issues, individuals who have strong ties to the community, individuals who are caregivers or individuals who are victims of crime.


ICE officers a number of factors to help determine whether a person may qualify for prosecutorial discretion. For example, the amount of time that the individual has been present in the United States, especially while in legal status, is one important factor. Additionally, ICE can consider how the individual came to be in the country and how he or she entered the country. This factor weighs more heavily if the individual came to the United States as a child. More consideration is given to individuals who have acquired from a high school in the United States or who have pursued or who are pursuing a college degree. Additionally, the person’s immigration history is evaluated, including whether or not the individual has been removed previously or if there is an existing order of removal. The individual’s criminal history is evaluated, including the existence of any arrests, previous convictions or an outstanding arrest warrant.

ICE officials can also assess the relationships between the immigrant and family members, such as whether the individual has a spouse, child or parent who is a United States citizen or permanent resident. If the individual is pregnant or nursing, this is also considered. Additionally, if the individual has a spouse who suffers from a severe mental or physical illness, this factor can be considered. Likewise, if the individual is a caretaker for an individual with a mental or physical impairment, this factor can also be considered. If the individual is likely to be granted some type of legal status due to a family relationship, this factor is also considered.

Information related to the individual’s home country is also assessed. For example, one important factor is whether the individual is likely to be unable to be removed due to his or her nationality, ICE may choose to exercise prosecutorial discretion. The same may occur if the individual is likely to be granted asylum or other status due to being a victim of a crime.

These are not all of the potential factors that ICE can consider. An immigration attorney may be able to write a letter to the ICE officer in charge of your case to request prosecutorial discretion be exercised.