Claudia Slovinsky

Applications for Prosecutorial Discretion

Prosecutorial discretion in the immigration context refers to the discretion or leeway that the Department of Homeland Security (DHS) has in deciding how to allocate resources in the prosecution of non-citizens and applies to a wide variety of circumstances. Unfortunately, it is not an immigration status that can lead to a green card. While the principle of prosecutorial discretion in immigration law is not new, the Department of Homeland Security's enforcement priorities are always subject to change.

Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when the government is deciding whether to detain or release a non-citizen on bond, supervision, or personal recognizance; whether to initiate, settle or dismiss removal proceedings, terminate or administratively close an ongoing removal proceeding; agree to reopen a previously concluded case; stay or execute a final order of removal; grant deferred action; or pursue an appeal. In certain circumstances, such as upon a grant of deferred action, an applicant may also be able to apply for an Employment Authorization Document.

There are many factors that DHS can take into consideration in determining whether to exercise prosecutorial discretion, including the person's criminal and immigration history, if any; the person's pursuit of education in the U.S.; the circumstances of the person's arrival in the U.S.; the person's length of presence in the U.S.; whether the person or any immediate relative has served in the armed forces; the person's ties and contributions to the community; whether the person has a U.S. citizen or permanent resident spouse, child, or parent; the person's age; the person's ties to his or her home country; and whether the person is likely to be ultimately granted some sort of temporary or permanent relief from removal.

Deferred Action for Childhood Arrivals ("DACA")

On June 15, 2012, President Obama signed a memorandum calling for deferred action for certain undocumented young people who came to the U.S. as children and have pursued education or military service here. Under this program, which is called Deferred Action for Childhood Arrivals ("DACA"), the government exercises its discretion to allow people who meet several key requirements to live in the U.S. and receive employment authorization. DACA may be granted for a period of two years, subject to renewal. Permission to travel outside of the United States and return can be granted upon a separate application.

Due to ongoing litigation, as of 2023 only DACA renewal requests may be processed by USCIS. You can check the current status of DACA here.

DACA can be granted to individuals who are in removal proceedings, who have final orders of removal, or who have never been in removal proceedings.

Note that there is no direct path from DACA status to lawful permanent residence or to citizenship and DACA can be revoked at any time. For some individuals, especially those with any criminal convictions, the decision whether to apply for DACA can be complicated.

Our firm can help you assess your individual circumstances and walk you through the pros and cons of applying for DACA. If you are eligible to apply, we can help you with your application.