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Immigration and Custom Enforcement (ICE) has confirmed it is now re-calendaring or placing back on court docket immigration cases that were previously administratively closed in an exercise of prosecutorial discretion (PD), including cases where there is an arrest or conviction subsequent to the administrative closure. ICE also said that if there was an arrest or conviction prior to administrative closure, that should not trigger a motion to recalendar, nor are they seeking to recalendar all of the cases that were administratively closed for prosecutorial discretion.  However, in some jurisdictions, local ICE offices are seeking to recalendar prosecutorial discretion cases where there was no intervening arrest or conviction.

When is Prosecutorial Discretion Used in Immigration Enforcement? 

Prosecutorial discretion may be exercised at any stage of an immigration case. Specifically, prosecutorial discretion may be exercised when deciding whether to: issue a detainer; initiate removal proceedings; focus enforcement resources on particular violations or conduct; stop, question, or arrest a particular person; detain or release someone on bond, supervision, or personal recognizance; settle or dismiss a removal case; stay a final order of removal; pursue an appeal; and/or execute a removal order. Examples of the favorable exercise of prosecutorial discretion in the immigration context include a grant of deferred action; a decision to terminate or administratively close removal proceedings; a stay of removal; or a decision not to issue a charging document in the first place.

Who Exercises Prosecutorial Discretion? 

ICE, USCIS, and CBP officers have the authority to exercise prosecutorial discretion. Because prosecutorial discretion is a process that determines whether the government is going to pursue enforcement in a case, the initial decisions are made by those immigration officers assigned to the case. Once the initial decision is made to issue a Notice to Appear (a document that formally initiates removal proceedings by charging an individual with immigration violations), further decisions about continuing the government’s case will be made at higher levels within ICE or DHS.  Ultimately, the Secretary of Homeland Security, as the official within the executive branch specifically charged with enforcing the Immigration and Nationality Act, is in a position to exercise prosecutorial discretion over every case.

For more information on immigration cases, email or call 1-877-GAIL-LAW or 407-292-7730.

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