News & Insights

1. What is Prosecutorial Discretion (PD)?

Prosecutorial Discretion (PD) refers to the authority of immigration officials, primarily attorneys from the Department of Homeland Security (DHS), to decide how to handle specific immigration cases. This discretion can involve dismissing a case, postponing removal, or even administratively closing proceedings to allow a person to apply for immigration relief.

Common PD Actions Include:

• Administrative closure of removal proceedings.
• A stay of removal.
• Dismissal of removal proceedings.

2. Can PD Lead to a Green Card?

While PD itself does not grant a green card, it can create opportunities to adjust your immigration status if you are otherwise eligible. Examples include:

Family-Based Adjustment of Status:

• If you have a U.S. citizen or lawful permanent resident spouse, parent, or child who files a petition (Form I-130) on your behalf, PD may halt removal proceedings, allowing you to complete the adjustment process.

Employment-Based Adjustment:

• If your employer has filed a petition (Form I-140), PD can grant you the time to complete the adjustment of status process without being removed.

Other Immigration Benefits:

• PD may allow you to pursue benefits such as asylum, Special Immigrant Juvenile Status (SIJS), or Temporary Protected Status (TPS) while avoiding immediate removal.

3. Key Considerations for Requesting PD

Favorable Factors:

• Strong ties to the U.S., such as family or community connections.
• A clean criminal record or evidence of rehabilitation.
• Long residence in the U.S. and significant contributions to society.
• Medical conditions or hardship to U.S. citizen or lawful permanent resident family members.

Application Process:

• PD requests are typically submitted to the Office of the Chief Counsel (OCC) handling your case.
• You or your attorney should file a written request highlighting the favorable factors in your case.
• Include supporting evidence, such as family ties, evidence of hardship, and proof of good moral character.

Limitations:

• PD does not grant legal status.
• You must still qualify independently for immigration benefits, such as adjustment of status or asylum.

4. Current Trends and Wait Times

PD decisions and processing times vary significantly based on the jurisdiction. In high-volume immigration courts like New York or San Francisco, delays may occur due to backlogs. However, dismissal requests are increasingly prioritized to clear the dockets for high-priority cases.

5. What Should You Do Next?

Consult an Immigration Attorney:

• An experienced attorney can evaluate your eligibility for PD and any underlying immigration relief.

Prepare a Strong Request:

• Highlight compelling humanitarian factors and your eligibility for future relief.

Monitor Policy Updates:

• DHS policies on PD can change, so stay informed about current guidelines that may favor your case.