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How to Qualify for Prosecutorial Discretion | Newark NJ Deportation Lawyer

On Behalf of | Apr 15, 2015 | Deportation |


Also known as “PD,” a Prosecutorial Discretion Request may be of help to certain individuals presently in removal proceedings before an immigration judge. Contrary to popular belief, this is not technically a form or application filed with the court. Rather, it is a request to Immigration and Customs Enforcement (“ICE”) for an exercise of discretion to discontinue proceedings against you in order to focus its resources on more important priorities. No one is entitled to prosecutorial discretion as a right, and unfortunately, not everyone will qualify. The decision is made based upon a number of factors, both positive and negative, in evaluating whether you are a candidate for this.

What are some positive factors that may be considered?

Unfortunately, there is no magic list that ICE goes by to determine whether a person merits prosecutorial discretion. Moreover, because the process is highly discretionary, there is no reliable, quantifiable system to predict how certain factors are weighed. Nevertheless, there may be some positive points or circumstances that you may want to highlight including, but of course not limited to:

  • Length of residence in the US
  • The lack of any criminal record
  • Any military service
  • Family ties
  • Current or past cooperation with law enforcement
  • Any humanitarian issues, such as medical conditions; ties to one’s home country (or lack thereof); the home country conditions; and whether the alien is pregnant, nursing, disabled, or a caretaker to someone who is elderly, young, disabled, etc.

The above is not exhaustive, and anything you think is a positive aspect of your case should be discussed with an attorney.

What are negative factors?

A recent memorandum released in November 2014 establishes three classes of priorities that the government is ordered to focus its resources and energies on. They are, respectively:

Priority One: generally speaking, this category addresses threats to national security, border security, and public safety.

Priority Two: generally speaking, this category is aimed at individuals who have been convicted of felonies and misdemeanors.

Priority Three: generally speaking, this tier focuses on people who have been issued final order of removal on or after January 1, 2014.

If you fall within any of these priorities, a prosecutorial discretion may not generate much traction or sympathy from ICE. However, personnel are instructed and encouraged to consider the totality of circumstances when evaluating a request. The memo does reference a non-exhaustive list of factors or issues that may be considered.


Prosecutorial discretion requests are a potential option for those facing removal. However, the prospects and viability of such requests should be discussed with an attorney. There may be legal considerations that affect whether prosecutorial discretion is the best option for you, especially if you do qualify for a form of relief before the Immigration Court.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.