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How to Seek Prosecutorial Discretion from ICE

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In November 2014, the Secretary of Homeland Security announced two new memorandum clarifying priorities on prosecutorial discretion and enforcement priorities. These policies are to be implemented by all DHS agencies, including USCIS, when deciding which aliens to arrest, detain, and remove from the US and when and how to exercise prosecutorial discretion.

What follows is guidance on how to seek prosecutorial discretion, including that via DACA and deferred action, from ICE under the new priorities:

When in ICE Custody:

  • If you believe you are eligible for prosecutorial discretion, including through DACA or deferred action, you should consult detainee-staff communication manual for the facility. Every detainee should be provided with a handbook containing this information upon their arrival.
  • You may also call the ICE Enforcement and Removal Operations (“ERO”) Detention Reporting and Information line at 1-888-351-2024 (toll-free)

When in Proceedings Before EOIR:

  • If you are currently in proceedings before and immigration judge or the Board of Immigration Appeals but believe that your case does not fall within the new enforcement priorities you may petition ice to administratively close your case. This also applies if you believe you are eligible for DACA or deferred action and have not previously applied.
  • You should submit such requests to the ICE office of the Principal Legal Advisor (OPLA) to the mailbox of the OPLA field office that is handling your case. The email address of each mailbox is available on ICE’s webpage.
  • The request to OPLA should include your full name, alien registration number (A number), and case status. It is advisable, but not required, to include the reasons why you believe that you do not fall within current enforcement priorities or are eligible for DACA or deferred action.
  • OPLA will respond promptly via email to all requests.

If You Have a Removal Order or Are Scheduled for Removal But Are Not in ICE Custody:

  • ICE is proactively reviewing the cases of individuals scheduled for removal.
  • However, if you are scheduled for removal and believe that your case merits prosecutorial discretion or reconsideration for DACA or deferred action you should consult the ERO officer responsible for your case.
  • You may also call the ICE ERO Detention line at 1-888-351-4024, contact your local OPLA office, or call the USCIS hotline at 1-800-375-5283.

If You Want to Contest a Prosecutorial Discretion Decision:

  • There are no formal reconsideration or appeals processes to prosecutorial discretion decisions.
  • There is no right to prosecutorial discretion.
  • If you disagree with a decision in your case you may contact the supervisor the DHS employee who made that decision for further explanation.
  • You may contact OPLA to request a review of any prosecutorial discretion decisions in your case.

Please go to the following website for more information: https://www.ice.gov/immigrationAction

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