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Prosecutorial Discretion in the Immigration Court—Are you Eligible?

On November 20, 2014, the Secretary of Homeland Security, Jeh Johnson, issued a memorandum regarding policies for the Apprehension, Detention and Removal of Undocumented Immigrants. This memorandum was issued so that the different agencies within the Department of Homeland Seecurity, i.e., Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS), could prioritize the execution of the nation’s immigration laws.

Because these agencies cannot contact every undocumented person in the United States, and because there might be reasons that a person who does not have legal status should not be deported, these guidelines were established.

These policies are primarily evident in Immigration Court proceedings. In the court, decisions are made as to whether to proceed with a case or administratively close the case because the Respondent (the person in removal proceedings) is not an “enforcement priority.”

Respondents who are Priority 1 and Priority 2 enforcement priorities will have a difficult time trying to get their Immigration Court case closed. Priority 1 cases are those persons who are threats to national security, as well as those persons who have been convicted of felonies. Priority 2 cases are those persons who have been convicted of three or more misdemeanor offenses in the United States, as well as those who have been convicted of a “significant misdemeanor.” Significant misdemeanors include DUIs, domestic violence, sexual abuse or exploitation, burglary, unlawful possession of a firearm, drug trafficking or any misdemeanor for which the person was sentenced to more than 90 days in custody. Priority 2 enforcement priorities also include anyone who has not been physically present in the United States prior to January 1, 2014.

Respondents who are not Priority 1 or Priority 2 enforcement priorities and who are scheduled for an Immigration Court hearing, should be able to administratively close their cases. This means that although the case still exists, there is no court hearing scheduled and the government has decided that they do not want to remove them. Of course, this is a memorandum and a policy that can change at any time.

It is important to hire a good immigration attorney because there may be a way to obtain an Employment Authorization Document, sometimes called a “work permit,” which enables the person to work legally in the United States. Often these work permits can be renewed even after the case is administratively closed.

One more thing: if your case is closed and you do commit one of the crimes listed above under Priority 2, the government will place your case back on the Immigration Court’s calendar and they WILL seek to remove you. You simply cannot get anywhere near criminal activity if you are here undocumented.


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