Request for Deferred Action / Prosecutorial Discretion
Prosecutorial Discretion means that those who are charged with enforcing the law also has to exercise a degree of discretion in deciding when and to what degree to enforce the law. For example, if the police pull someone over for a traffic violation, they may decide that a warning is all that is necessary for one reason or another.
- On June 17, 2011, the Director of the US Immigration and Customs Enforcement (ICE) issued a memo encouraging everyone in the agency to exercise discretion in how they carry out their duties, in accordance with the agency’s priorities. This was said to be particularly necessary due to the agency’s limited resources.
- Some factors that make favorable discretion more likely include: serving in the US Armed Forces, a long history of lawful living in the US, age (either very young or fairly old), pregnant or nursing women, victims of crime, or health conditions.
- Some factors that make unfavorable discretion more likely include: risk to national security, criminal record, gang membership (or similar groups), record of immigration violations.
- Prosecutorial Discretion can take several forms including: Voluntary Departure, Stay or Cancellation of Removal, Asylum, Adjustment of Status, Deferred Action, or Motions to Reopen or Reconsider.
- While the memo encourages ICE agents at every level to exercise Prosecutorial Discretion whenever it might be appropriate, foreign nationals and their legal representatives may also issue requests that their case be handled in this way.
- Deferred Action is a form of Prosecutorial Discretion and is granted by the US Immigration and Customs Enforcement (ICE), not a judge.
- Deferred Action is an administrative action in which DHS decides not to prosecute or remove an individual. The decision lasts indefinitely and can be reversed at any time.
- Most cases of deferred action involve individuals with some kind of health problems, but it can be granted for other reasons on a case-by-case basis.
- Being granted Deferred Action is not a granting of an immigration status.
- Those who have been granted Deferred Action are considered to be legally in the US, and are eligible to apply for employment authorization.
- Importantly, prosecution can resume any time at the discretion of DHS.
If you have been issued a Notice to Appear, contact the offices of Eaton and Associates today for a free consultation. We will examine your case in detail and advise you on the best course of action for your unique circumstances.
We are experienced in the courtroom, and will represent you at every step of the way. We have helped many people just like you to live and work legally in the United States. Let us help you too. Contact us through our website, by phone or in person at one of our three offices in California and Oregon today.