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Prosecutorial discretion is the option to ask U.S. Immigration and Customs Enforcement (ICE) to dismiss your immigration court case.

Recently, the U.S. Supreme Court affirmed that the Department of Homeland Security (DHS) has the power and the discretion to prioritize which noncitizens they want to try to deport. Since this decision, two memorandums explaining DHS’s criteria determine which immigrants are priorities for removal and which immigration court cases can be dismissed.

Here’s what you need to know about prosecutorial discretion and how it can impact your immigration case.

Which Cases Qualify for Prosecutorial Discretion in Immigration?

Prosecutorial discretion in immigration is an option if DHS does not consider you a priority for removal. This means that to be willing to dismiss your case, you must have:

  • Arrived in the United States before November 1, 2020, and are not a threat to border security.
  • Have not engaged in serious criminal conduct and are not a threat to public safety.
  • Are not a danger to national security (for example, terrorists).
  • Have not engaged in fraud and misrepresentation to obtain an immigration benefit (a visa, entry into the United States, etc).
  • Have not knowingly smuggled other individuals unlawfully into the United States.

Even if you are currently a priority for removal, DHS may consider your case for dismissal if you have certain circumstances, such as eligibility for immigration relief, your health, or whether you have immediate relatives who are U.S. citizens, such as children or spouses.

Why Is Prosecutorial Discretion Now an Option? 

ICE has more cases than its eight to ten (8-10) ICE attorneys can handle in its Charlotte office, with approximately 80,000 court cases pending in the Charlotte Immigration Court alone. Therefore, ICE is willing to dismiss certain cases to reduce this burden on their team.

What Is the Process Like for Case Dismissal?

There are two ways case dismissal can happen with prosecutorial discretion:

  1. Your attorney can request that ICE join your motion to dismiss proceedings by presenting evidence of how you are not a priority for removal.
  1. If you choose not to ask for dismissal at this time, an ICE attorney can request that the court dismiss your hearing, even at the last minute at your final hearing. In this scenario, the judge will likely dismiss your case even if you want to continue because ICE decides who, how, and when they want to deport individuals. 

Benefits of Continuing Your Case vs. a Dismissal

Let’s look at the possibilities of continuing your case versus a dismissal of your court case.

Continuing Your Court Case

In immigration court, the chances of application approval, such as cancellation of removal or asylum, are extremely low. In the case of asylum cases, the approval rate is between 5 to 15 percent, depending on the immigration judge. There are certain new judges, however, for whom denial rates are unknown, but you can find more information here.

Should a judge order your removal, you have the right to appeal your case and ask the Board of Immigration Appeals (BIA) to review the judge’s denial. Should the BIA dismiss your appeal, it is possible to request the U.S. Court of Appeals for the Fourth Circuit to review the judge’s order and the BIA decision dismissing your appeal.

However, although an order of removal is not final until the BIA decides your appeal, once it is decided, ICE can detain and deport you, even if you have a pending appeal with the Fourth Circuit. Until there are no more appeals, you will be able to renew your work authorization. 

Dismissal of Your Case

If the court dismisses your case, although you will not have a way to obtain legal status through the immigration court, you will also not have a removal order or be at risk of being ordered removed.

Dismissal of a court case means that any application pending with the immigration court is now canceled unless it is an adjustment of status application. With no pending applications, employment authorization applications cannot be renewed. If you filed a cancellation of removal application (EOIR-42B), there is, unfortunately, no application that can be refiled with U.S. Citizenship and Immigration Services (USCIS). 

However, if your asylum application has been canceled with the dismissal, you can refile the application within a reasonable time period. You must also demonstrate that it was an extraordinary circumstance that you are filing after more than one year of entry into the United States. That is, it was not in your control that ICE no longer wanted to pursue removing you and that the judge dismissed your case. It’s crucial to understand that if you do not refile it within a reasonable time period, you will lose your asylum claim. Refiling the application will result in eligibility to obtain new employment authorization.

Approval rates for asylum with USCIS are substantially better than those of the Charlotte Immigration Court, which are currently extremely low at 5 to 10 percent approval rates. As an added benefit, USCIS will conduct your asylum interview in a non-adversarial setting. This means there is no ICE attorney or immigration judge questioning you and attempting to prove that your application should be denied and you should be deported. Instead, it will be a trained USCIS officer interviewing you regarding your claim. It can be many years before you receive an interview regarding your asylum claim. The office for asylum is located in Arlington, VA, but they will sometimes interview individuals at USCIS offices in Raleigh, Charlotte, Greer, and Atlanta.

Another advantage to pursuing a dismissal is that with more time, you may be eligible for other immigration benefits if:

  • Your family members become U.S. citizens or lawful permanent residents, or you marry a U.S. citizen or lawful permanent resident.
  • You are a victim of a crime in the U.S. and have cooperated or are cooperating with law enforcement.
  • You were the victim of sex or labor trafficking at any time as part of your trip to the U.S. and after you entered the U.S.
  • Temporary Protective Status is declared for nationals of your country.

These are examples of what may eventually lead to other statuses, including lawful permanent resident status.

What to Do If Your Case Has Been Dismissed

If your case has been dismissed, you must continue to update your address and contact information with your lawyer, even if years have passed. Immigration law in the U.S. constantly evolves, and your attorneys will inform you of immigration law changes that may affect you. However, they can only notify you if they have your current contact information, so always keep it updated.

How to Move Forward With a Dismissal

If you would like to consider an immigration case dismissal with prosecutorial discretion, contact Lopez Law. We can contact ICE about the dismissal of your immigration court case on your behalf and work with you to complete this process.