Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
One Practice. One Focus. One Passion: Immigration Law.

Prosecutorial Discretion Exists

Recently a client came into my office to discuss his impending deportation case. He had been falsely accused of theft and was arrested. After the theft charges were proven to be false, he was transferred to ICE custody and issued a notice to appear. His family was able to obtain bail and he came to me to determine if any relief existed where he could avoid deportation. He had entered with a tourist visa, but was not married to a U.S. citizen. He was a derivative of a petition from 1994 but had subsequently aged out. This petition afforded him 245i protection, and his permanent resident mother had filed a petition for him in 2006, but several years remained until his priority date would be current. In spite of these favorable factors, he did not qualify for any relief from deportation.

In June 2011, U.S. Immigration and Customs Enforcement ("ICE") issued a memorandum outlining factors to consider when determining whether they should commence removal proceeding against a person, or exercise prosecutorial discretion and place a case in administrative closure or terminate proceeding altogether. According to the memo, some of the factors that should be considered in determining whether or not to exercise prosecutorial discretion are, manner of entry, immigration history, criminal history, ties to the U.S. and home country, if they have U.S. citizen or permanent resident spouse, parent, or children, and many other factors as well.

In my client's case, proceedings had already begun and he was scheduled for an initial hearing in a matter of weeks. We prepared a request to the ICE Office of Chief Counsel to request that they agree to place his case in administrative closure and allow him to await his priority date through his permanent resident mother's petition. We outlined the factors in the memo that were favorable to his case and provided evidence of each of them. Including, that he had entered the country lawfully, had numerous relatives residing lawfully in the U.S., and that he was 245i protected with a pending petition from his mother.

After several weeks and only 6 days before the initial hearing, we received a phone call from ICE that they were agreeing to place the case in administrative closure. This would allow our client to live in the U.S. and potentially seek work authorization while he awaits the priority date of his mother's petition to become current. Once the petition is current he will be able to adjust status to that of a permanent resident here in the U.S.

This is evidence that ICE is slowly moving towards favorably exercising prosecutorial discretion in certain cases. Even if no relief exists, it may be possible to avoid removal proceedings and remain in the U.S. People who believe they may be eligible for such a request should contact an experienced immigration attorney to evaluate their case and to prepare a request with ICE to place the case in administrative closure. We understand the difficulties and complexities of the U.S. immigration laws. At Wilner & O'Reilly, we have former immigration officers, board certified specialists and experienced attorneys. We understand the importance of your family. Everyone deserves to be with their family. All our lawyers have experience in handling such cases. We are immigration experts you can trust!

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