The Immigration and Customs Service (ICE) announced that it has reactivated the tool known as ‘prosecutorial discretion’, a due process procedure that allows the agency’s prosecutors to end a deportation case.
The procedural tool had been eliminated during the government of Donald Trump as part of the ‘zero tolerance’ immigration policy.
The new rule adds to the order given on June 12 by the Immigration Court (EOIR) for judges to guarantee “fair and timely processes” to all immigrants.
“The announcement opens the doors to close the cases of the majority of people who are fighting for their permanence, have a deportation case, have been in the United States for a long time and have behaved well,” says Alex Gálvez, an immigration attorney who practices in Los Angeles California).
“Immigration prosecutors will have the discretion to terminate cases, dismiss them, and immigrants will be released from the deportation process,” he added.
Gálvez explained that during the Barack Obama administration (2009-2017), the government granted prosecutors discretion to put cases on hold. Now Biden has gone one step further, authorizing to close them, that there is no longer a deportation process for low-priority immigrants ”.
OPLA attorneys (prosecutors) “may exercise procedural discretion in proceedings before the Immigration Court, subject to the direction of their legal advisor and the corresponding guidance from DHS,” the new regulation details.
“In exercising such discretion, OPLA attorneys adhere to enduring principles that apply to all of their activities: uphold the rule of law; perform their duties ethically in accordance with the law and professional standards of conduct; follow the strategic guidelines and directives of senior management; and exercise a thoughtful judgment and do justice in individual cases ”, he adds.
“If the immigrant in deportation proceedings was undocumented, they will continue to be undocumented, but without an open deportation process against them,” explains Gálvez.
“In this situation of crime or that the immigrant has committed a fault, his lawyer will have to see and determine if he can fight to request the termination of the case through prosecutorial discretion,” he indicated.
“If the person is deported and has temporary relief at this time, for example 2012 Deferred Action (DACA) or Temporary Protected Status (TPS), he can request the reopening of his case and then proceed to close it, dismiss it,” added Gálvez. .
In the case of people who do not have temporary relief, but qualify for residency through a U.S. citizen child, or discharged from the Armed Forces or sick and dependent on you, “you also qualify to request procedural discretion to reopen the case and get relief, “he explained.
The procedural discretion “will allow you to close your case, but it does not provide you with an immigration status,” warns José Guerrero, an immigration lawyer practicing in Miami, Florida.
He indicated that, in order to qualify, “the person must show that he does not have a serious criminal record, good moral character, has been in the United States for a long time, has an established family, works to support it and the case for which deportation proceedings were opened does not constitute priority for the Department of Homeland Security (DHS) ”.
The lawyers consulted by Univision Noticias agreed that the new rule appears at a time when Congress is debating a immigration solution for dreamers and TPS holders. “It opens the way for them so that if they pass a law, they can seamlessly qualify for legal residency and then US citizenship.
The OPLA said the decision to exercise discretion will be made on a “case-by-case” basis and “considering the totality of the circumstances.”
Among the factors to consider, the following will be taken into account:
- The time of residence of the non-citizen in the United States
- If the non-citizen’s family members serve in the Armed Forces
- Family or community ties of the non-citizen in the United States
- Circumstances of the foreigner’s arrival in the United States and the way in which he entered the country
- The prior immigration history of the non-citizen
- The employment and educational history of the non-citizen in the United States
- The status of the non-citizen as a victim, witness or plaintiff in civil or criminal proceedings and pressing humanitarian factors present in the case of the non-citizen, including by the close relatives of the non-citizen.
Other reasons to consider for a decision include:
- Medical condition
- State of the child
- Sick relatives and care for sick immediate relatives
The lawyers recommended that immigrants who qualify for this reactivated benefit seek legal advice before taking a step or starting a paperwork.