PROSECUTORIAL DISCRETION: every immigrant is now high priority for deportation

Since President Donald Trump took office in January 2017, he has implemented three executive orders that have had a significant impact on immigration and specifically affecting an immigration policy known as “prosecutorial discretion.”

In February the government implemented changes that essentially make everyone who is an undocumented immigrant a priority for deportation, as well as rescinding most of the guidelines that were being used by officers for prosecutorial discretion. What does this mean?

In a nutshell it’s a tougher go for millions of immigrants; before Trump, Immigration officers had the power to prioritize through assessment of cases. Now everyone is considered at risk for removal. Read on to understand more about prosecutorial discretion and how these changes might affect you or a loved one.

What is prosecutorial discretion?

“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.

How did Prosecutorial Discretion help or hinder your case?

The power of prosecutorial discretion emerged 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.

What cases qualify for high priority in deportation?

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.

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.


Written by: Harlan York

Immigration Attorney Harlan York is Former Chair, Immigration Section, NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Immigration Committee. Mr. York appeared on National Television on CBS This Morning with Charlie Rose and Primer Impacto on Univision, as well as Telemundo, NBC, and PBS. He was honored as First Ever Immigration Lawyer of The Year in NJ by Best Lawyers.

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