What is Prosecutorial Discretion?

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By Atty. Cynthia Exner

The Department of Homeland Security prioritizes removing foreign nationals who are a danger to our US communities. Many people who have no criminal records, have family and business ties to our communities and do not pose any threat to our community are still placed in removal/deportation proceedings. They may end up in removal/deportation proceedings because a case that they filed with US Citizenship and Immigration Services (USCIS) is denied, or because they were detained by ICE officers when crossing the border into the US, or USCIS raided their place of employment.

In 2011, the Obama Administration listened to many community groups and members of congress from around the United States, calling for some type of relief from deportation/removal proceedings so that families would not be torn apart. Prosecutorial Discretion has become one such type of relief. This enables the Chief Counsel’s Office representing USCIS to join together in a motion with the attorney representing the foreign person to request that the removal/deportation case be terminated, delayed or closed. Chief Counsel representing the Immigration Service can exercise prosecutorial discretion on a case-by-case basis by deciding not to put foreign persons into removal proceedings at all, or to terminate a removal proceeding, or to delay a removal proceeding. It is then up to the Immigration Judge to accept the motion and terminate, close or delay the proceedings.

In general, the Chief Counsel and the Immigration Judge like to see that the person has strong ties to the community, such as a good job that has been held for several years, volunteer work, membership in a church or other civic organizations, US-citizen family members, such as children or parents, and other factors that weigh heavily in favor of the foreign person.

Closing cases helps the immigration courts and Chief Counsel to move more quickly on serious cases, eliminate the severe backlogs in the courts and to focus on criminal and terrorist foreign persons, while it also allows the foreign person the time needed to pursue other avenues to becoming legal, such as family sponsorship or employer sponsorship.

Not every case qualifies for Prosecutorial Discretion and the standards are high. The foreign person must show that he/she does not have a criminal record, or that any arrests are very minor offenses, and that the person does not pose any threat to the community.

If you think that you, or someone you know, may qualify for Prosecutorial Discretion in deportation/removal proceedings, it is important to begin creating a good case as soon as possible. You should not simply show up in immigration court on the day of the hearing and ask for Prosecutorial Discretion. You should create a case with documentary evidence of your membership in good organizations, your participation in your church activities, community activities and school activities; show that you have held your job for a long time, that you have paid your taxes, that you have not been arrested and that you have legal family ties in the US.

Cynthia R. Exner is an immigration attorney at the Danbury office of the Immigration Law Offices of Cynthia R. Exner, 270 Main Street, Danbury, CT. If you have any questions relating to this topic, you can contact Attorney Exner at 203-830-4045 or by email at

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