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Category Archives: Immigration arrests

Removal Cases: What is Prosecutorial Discretion and Am I Eligible for this Benefit?

At my law office, I have been receiving many calls from individuals in deportation / removal proceedings asking whether a new law has been passed that helps them avoid removal from the U.S.  There has been a change, but it is not a new law per se.  Basically, the Obama administration has issued a policy change in how they will treat OPEN deportation and removal cases by setting “low priority” and “high priority” case standards. Those individuals with what are considered low priority cases are eligible for prosecutorial discretion, which means that the Immigration Court can “administratively close” or even terminate removal proceedings.

The new policy change is that John Morton, Director of ICE, has explained the benefit called Prosecutorial Discretion and has even created a system whereby an immigration lawyer can file a prosecutorial discretion request on behalf of their clients.  The request is usually made to the Chief Supervising Attorney at the Office of the Chief Counsel.

I have filed many requests for prosecutorial discretion on behalf of my clients, and I have received calls directly from the Chief Supervising Attorney about some of those pending applications.  I mainly look for the following factors when choosing whether an individual is a good candidate for prosecutorial discretion:

  • Length of time in the U.S.
  • Any family in the U.S. especially immediate relatives
  • Any health conditions for the applicant or his / her U.S. citizen or lawful permanent resident relatives
  • Completing an education in the U.S.
  • Entering the U.S. at a young age
  • Lack of a criminal history as well as other factors detailed in a Memo issued by John Morton OR
  • Any other “humanitarian” type of factors

It is important to note that you do not need all of the above points to qualify for prosecutorial discretion.  I look for one or more of the above factors, and I organize our request in a way that maximizes our chances of success by attaching legal arguments and documentation.

The reason for this policy change is that there are more removal cases than the current immigration court system can handle. In other words, Obama wants to focus on criminal aliens more than the aliens that have no criminal record and the aliens that have a possible means to obtain immigration relief.

We have noticed an increase in the cooperation of the trial attorneys for cases where the individual has no criminal history, and we are thankful for this new policy change.  For individuals who already have a Final order of removal, we have been successful in filing a prosecutorial discretion request asking the Office of Chief Counsel to Join our Motion to Reopen based on other grounds, and they can cite this policy change as a reason for the Judge or the BIA to have mercy on them and grant their request.

The above policy is in line with the thoughts reiterated by Homeland Security Secretary Janet Napolitano, who has stated that the work raids where hundreds are arrested will stop, and focus of immigration officials will turn to prosecuting and removing criminal aliens.

ICE Arrests 2,900 Criminal Immigrants Over a 7 Day Period

CNN has reported that over a span of 7 days, ICE has arrested 2,900 immigrants who had criminal convictions. ICE arrested 2,900 people from all over the 50 states. The Obama Administration has consistently upheld its policy against criminal aliens, and this is one example of their policy being placed in action. Of those 2,900 people, more than 1,200 people had multiple convictions. Also, 1,600 of those people had felony convictions ranging from manslaughter to sexual crimes against minors. A few were even gang members or convicted sex offenders.

ICE has estimated that there remain at large over 1 million convicted immigrants in the U.S. Most of the people arrested, about 2,600 of them, were men.

I know from the calls I am receiving in my office that enforcement of criminal aliens is definitely on the rise, because at least 50 percent of the calls I have been receiving lately are calls from family members seeking assistance in getting their loved one out of immigration custody. Many of the detained aliens have had some previous criminal conviction(s) in their past.


I had the pleasure of being interviewed by Ericka Bennett with Action News Jacksonville on November 16, 2010 regarding the issue of how much control police have in arresting undocumented individuals. I thank Ericka Bennett for the opportunity.

To read the article, please go to this link: