Prosecutorial Discretion for People in Removal Proceeding

Removal proceedings commonly referred to as deportation hearing occurs when the government accuses a non-citizen of violating the United States immigration laws and thus, request an immigration judge to make an order of removal or deportation. For some respondents in removal proceedings, it might be a great strategy to seek Prosecutorial Discretion (PD) by asking the government counsel to join in a motion to dismiss the case or place the case in administrative closure. You should only take this step if you have other reliefs to seek outside the immigration court.

PD is the authority of the executive branch of government through its agencies or officers to decide what charges to bring and how to pursue each case. It is simply the power of the prosecuting agency to make prosecutorial decisions. PD has been a longstanding part of U.S. immigration law. PD helps the government to prioritize and efficiently utilize its limited resources. Thus, the Department of Homeland (DHS) attorneys have the inherent authority to exercise PD on a case-by-case basis in the handling and litigation of removal cases.

In practice, PD allows OPLA attorneys to decide on which cases to focus their finite resources and how to proceed in individual cases in light of the facts and applicable law, including, for example, agreeing to dismissal or administrative closure or entering into stipulations on legal or factual issues as well as relief, bond, and continuances. PD is an inherent authority of a law enforcement agency and does not create a right or entitlement for any noncitizen.

How does PD work?

The Office of the Principal Legal Advisor (OPLA) attorneys are prosecutors in immigration courts. They are entrusted to use their professional judgment to ensure justice in each individual case while adhering to the enduring principles that apply to all of their activities such as upholding the rule of law; discharging their duties ethically in accordance with the law and professional standards of conduct; following the guidelines and strategic directives of senior leadership; and exercising considered judgment in individual cases, particularly mindful of OPLA's limited resources.

OPLA attorneys are saddled with the responsibility of independently evaluating cases to determine whether to exercise PD, which may include unilaterally moving to dismiss or administratively close cases; joining the respondent in a motion to dismiss, or continuances; waiving right to appeal; or joining in motions to reopen proceedings.

Can I Still Submit a Request for PD?

PD is a request made to the government attorney prosecuting the case and not to the judge. The grant or refusal to grant a PD is entirely within the prerogative of OPLA attorneys who will review cases during the normal course of business to determine whether and how to exercise PD.

PD request is a very technical and difficult application to make as there are several legal nuances and guidelines set by ICE. Attorney Emmanuel Asiriuwa has successfully helped clients terminate removal proceedings using PD tactics. If you or anyone you know are in a removal proceeding, call us today for a free consultation.