A Return to Prosecutorial Discretion Means Some Relief for Immigrants
By: Harlan York
March 25, 2021

Good News For Immigrants in the United States. New laws under Biden mean a return to pre-Trump days in terms of prosecutorial discretion. Immigration officers once again have the power to prioritize through assessment of cases. 

The Trump administration passed three executive orders that essentially made everyone who is an undocumented immigrant a priority for deportation, as well as rescinding most of the guidelines that were being used for prosecutorial discretion. That policy meant that everyone was considered at risk for removal, and made it more difficult who should be up for deportation or removal.

Biden in the meantime has put in interim guidelines that are intended to once again focus on those who post an actual threat to national security.

What does this mean in a nutshell?

While prosecutorial discretion is not a tool that can be used to find substantive form of immigration relief, it can be used to avoid deportation and buy time for immigrants while they look for other avenues to get their green card or visas. This is a very good time to look for these other avenues.



“In the judgement of the immigration officer…”

Prosecutorial discretion is an old term that describes the personal authority that an immigration agent or officer has to be able to make decisions on what kinds of charges could be lodged on an individual immigration case. It essentially allows an officer or agent the right to his own personal opinion on each case based on authority and experience.

Below is a 2 minute clip from a webinar I did for Lawline, that explains the basics of prosecutorial discretion.



The power of prosecutorial discretion is in its ability to quickly change the outcomes or direction of a particular case.

It was designed to allow individuals through the daunting piles of immigration cases in such a way that – without wasting too much government time and money – quick decisions can be made about which cases posed the most threat to Homeland Security.

This discretion meant cases that fell into any of the high priority deportation category were taken first, and those that fell into a lower priority category could be essentially dismissed, or moved toward a positive outcome.


In November 2014 the Obama Administration named as high priority cases among others:

  • Terrorists, national security threats, individuals apprehended at the border attempting to enter unlawfully, gang members, individuals with felony convictions
  • Prioritized unless they qualify for asylum or other relief (or Immigration finds extenuating circumstances)
  • Those who attempted to cross the U.S. border unlawfully
  • Immigrants or border crossers who have committed misdemeanors
  • Those who had already received an order for removal (deportation) from the United States

In his Executive Order: Enhancing Public Safety in the Interior of the United States, President Trump expanded the definition of high priority to include immigrants of border crosses who:

  1. Have been convicted of any criminal offense
  2. Have been charged with any criminal offense, where such charge has not been resolved
  3. Have committed acts that constitute a chargeable criminal offense
  4. Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency
  5. Have abused any program related to receipt of public benefits
  6. Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States
  7. In the judgment of an immigration officer, otherwise pose a risk to public safety or national security

Under these new rules, in theory, a student who overstays her visa, and is caught jaywalking would be considered a priority, even if they were a model person in every other way.

Biden has put interim guidelines for removal / deportation that are intended to “focus…limited resources on cases that present threats to national security, border security, and public safety, our agency will more ably and effectively execute its law enforcement mission.” In other words, less about the students overstaying their visa, or jaywalkers and more about those people who genuinely post a threat to national security.

No matter if you are high or low priority, if you suspect that you fit into any of the categories above PLEASE CONTACT AN IMMIGRATION LAWYER before you try to proceed on your own in any immigration matter.

About Harlan York

The first-ever attorney in New Jersey to win “Immigration Lawyer of the Year” from Best Lawyers, Harlan York is former immigration chair of the NJ State Bar Association and former co-chair for the NY State Bar Association CFLS Committee on Immigration. He currently serves on the American Immigration Lawyers Association (AILA) National Practice Management Committee.

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Harlan York & Associates practices law in the areas of Immigration, Deportation Defense, Family Immigration, Corporate Immigration, Naturalization throughout Essex County – Hudson County – Morris County – Passaic County – Somerset County – Middlesex County – Bergen County – New Jersey -Immigration Lawyer – NJ Immigration Lawyer – Jersey City-Newark-Paterson Passaic Elizabeth Edison Woodbridge Toms River Hamilton Trenton Camden Clifton Passaic Garfield Wallington Cherry Hill East Orange Passaic Union City Bayonne Irvington Old Bridge Lakewood North Bergen Vineland Union Wayne Parsippany-Troy Hills New Brunswick Plainfield Bloomfield Perth Amboy East Brunswick West New York West Orange Hackensack Atlantic City Kearny Mount Laurel Montclair Essex Hoboken North Brunswick Belleville. In addition to serving clients in New York, Pennsylvania, the greater United States, and Internationally.

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