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Prosecutorial Discretion or its informal name “How to get the Government to Drop its Immigration Case Against You”

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Prosecutorial discretion allows the government to choose whether or not to take enforcement action against a person. In the immigration context, US government attorneys have discretion when to terminate removal proceedings against an immigrant. In May 2021, USCIS issued a memorandum which encouraged US government attorneys to use prosecutorial discretion to expedite cases and move through the backlog of cases.

The memorandum tells US government attorneys to look each case on a case-by-case basis and look at all factors pertaining to the person. They are told to look at the mitigating factors and the aggravating factors. Mitigating factors include: length of residency in the US, service in the military, family or community ties in the US, current immigration status, previous immigration history, status as a victim, primary caregiver of child, elderly, seriously ill relative in the US, and other compelling humanitarian factors such as poor health, age, pregnancy. Aggravating factors are: criminal history, participation in persecution or human rights fraud, and immigration fraud. If there is a criminal history, the memorandum instructs US government attorneys to look at the seriousness of the crime, length of time passed, rehabilitation, sentence imposed and/or served, and the circumstances surrounding the crime.

When requesting prosecutorial discretion, an appropriate exercise of prosecutorial discretion has the mutual interests of both the person benefitting from the discretion and US government. This is truly a mutual interest because US government attorneys are told to determine on their own whether a case should have a favorable exercise of prosecutorial discretion regardless of whether the person benefitting from it formally requests prosecutorial discretion or not.

The memorandum also includes some information on dismissal of proceedings. It states that cases involving the following should be dismissed: military service members or immediate relatives of a service member, individuals likely to be granted temporary (i.e. TPS) or permanent (marriage to a US Citizen) relief, significant law enforcement or other governmental interest, long term lawful permanent residents (i.e. people who got their greencards at a young age and have close family and community ties), and finally other cases involving compelling humanitarian factors, such as pregnancy, caregiver to a seriously ill relative in the US, minor, victim of domestic violence, crime, or trafficking, and length of time in the US.

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