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.