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Get Ready! Prosecutorial Discretions are being Revoked.

Question: I was in Immigration Court about 2 years ago and had no relief. However, I did not have any crimes either and my attorney made a motion for prosecutorial discretion. However, last week, I was arrested for DUI. I did not even have to plea as the case was dismissed. There was no evidence and I have no conviction. However, the arrest prompted ICE to revoke my Prosecutorial Discretion. What happens now?

Answer: Under U.S. immigration law, prosecutorial discretion (PD) refers to the power that ICE has to discontinue working on a deportation case. ICE can exercise its PD in many different ways. For example, ICE can join you in asking an immigration judge to close your case. Prosecutorial discretion used to be under Obama one of the most important aspects of Immigration Law. Immigration Prosecutors can choose not to prosecute a crime for which someone is arrested. They can decide to pursue less serious charges. They can basically decide not to issue the Notice to Appear and begin Removal Proceedings.

However, under Trump, this has changed. Prosecutorial Discretion is all but dead. It is very rarely being issued. There are, of course, situations where it is still merited, but nothing like before. Additionally, ICE is revoking grants of PD left and right. Therefore, it becomes necessary for you to know your rights.

You do not have to sign a voluntary deportation;
You can fight your case in front of the Immigration Judge; and
You can still get detained;
You can make a motion to get bonded out.

Therefore, you will note that ICE officials in many cases will not tell you the truth and will lie about what you can and cannot do. You MUST know that you can fight your case and the fact that the Prosecutorial Discretion was denied and/or revoked is no reason to give up. It just means you must fight your case now.

Question: But how can I fight? What should I do?

Answer: First, get a qualified Immigration Attorney. Each case is different. This means that depending on your situation, the particular forms of relief will be different. We might be able to apply for Cancellation of Removal or Adjustment of Status, or Waivers of a variety of different kinds, or Asylum, Withholding of Removal, Convention Against Torture or a number of other forms of relief. What is important is that you can fight your case. Simply because Trump has decided to issue orders revoking Prosecutorial Discretion does not mean your path has ended.

Immigration Attorneys across the country are fighting every order that Trump makes. He cannot simply make the Immigration and Nationality Act disappear, or the Code of Federal Regulations, or the Policy Memos or the Foreign Affairs Manual. We are a country of Laws and one man, even if President of the U.S., cannot simply dictate and make all of that disappear.

We are fighting one case at a time and ultimately, we will prevail and the tides will turn. Trump is already seeing through his Muslim Ban, that he cannot simply sign a paper and think it becomes law.

 

 

TRUMP revoking many PD Cases

The AssociatedPress reports that immigrants who received deportation orders but were allowed to stay in the United States under the Obama administration have become a target under President Donald Trump’s new immigration policies, with some getting arrested during check-ins with immigration officers. In other instances, immigrants with deportation orders have been released, much like they were during President Barack Obama’s administration, in what immigration attorneys say appears to be a random series of decisions based more on detention space than public safety.

New DHS memo on Exercise of Prosecutorial Discretion

As with the other parts of the memo, it is wide open, vague and ambiguous. States officers can arrest and detain if ‘probable cause’, but there is no definition as to how it defines this term and under what conditions.

No more excluding any classes from prosecutorial discretion. Thus, it seems wide open to try to get as many foreign nationals as possible.

Be prepared to fight in Court.

Another Win for the Law Offices of Brian D. Lerner

Prosecutorial discretion granted and deportation case administratively closed for client with 10+ years in the United States but no immediate relatives, no documented employment history or tax filings and several vehicle code arrests/convictions.  Client can now remain in the U.S. legally in hope of immigration reform in the future.

HS Provides Pocket-Size Instruction Card on Prosecutorial Discretion to Enforcement Officers

DHS issued an instruction card for enforcement personnel to carry that provides guidance and brief instruction on the DHS enforcement priorities articulated in the November 20, 2014, memo on prosecutorial discretion. ICE Director Sarah Saldaña presented the card to the House Judiciary Committee at an oversight hearing last week.

Under immigration reform USA, here are exceptions to the priorities of deportation

The immigration reform USA has made specific reference to three priorities and how they are to be deported and put into removal proceeding and deported. However, the same memorandum, explains Brian D. Lerner, goes into exceptions of what you can do in order to not be deported or placed into deportation proceedings, even if you fall under one of the priorities.

Priority 1 Exceptions:

Brian D. Lerner reminds that Priority 1 targets are the highest level of targets, such as terrorist suspects, national security, various felonies, aggravated felons and various gang related crimes. The immigration reform USA exceptions to priority 1 are as follows: Of course, if you qualify for asylum, then it does not matter if you are in priority 1 as you can apply and stay if granted asylum. However, the immigration reform USA states that if you do not qualify for asylum and are under priority #1, that you can request that under prosecutorial discretion, you are not placed into removal proceedings and/or removed if in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors that clearly indicate you are not a threat to national security, border security, or public safety and should not therefore be an enforcement priority.

Clearly, the immigration reform USA is quite strict on allowing an exercise of prosecutorial discretion if you are under Priority #1. It also allows a variety of levels of personnel to make the decision. It might be best, states Brian D. Lerner, to apply with the top official, rather than the lowest level official who might not have as much sympathy or knowledge or procedure. However, it is possible explains Brian D. Lerner if you have a packet put together that is persuasive and that shows that there are compelling and exceptional factors to grant the request for prosecutorial discretion to not be removed. In the memo itself, in the immigration reform USA, it does not discuss what is defined as ‘compelling’ or ‘exceptional’, and therefore, there is lots of room to properly argue relief from deportation.

Priority 2 Exceptions:
Brian D. Lerner reminds that Priority 2 is the mid level priority to deport people. In summary, Priority #2 deals with persons who have 3 or more various misdemeanors, or a significant misdemeanor of which deals with specific crimes such as domestic violence, gun crimes, drug crimes, burglary, or other crimes where there was 90 days or more in custody. The immigration reform USA also included in Priority #2 includes people entering illegally or re-entering illegally and cannot prove they have been in the U.S. prior to January 1, 2014 and finally those people who have abused the visa waiver or other visa programs and in their discretion should be deported.

Thus, Brian Lerner states, that under immigration reform USA, it is in the memorandum that in order to try to apply for prosecutorial discretion so that you are not deported or put into deportation proceedings if you are in Priority #2, the following must be done: First, as with Priority #1, if you qualify for asylum, explains Brian D. Lerner, then you will not be deported here. However, assuming that is not the case as under the immigration reform USA, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or USCIS Service Center Director, there are factors indicating the alien is not a threat to national security.

Brian D. Lerner, explains that the procedure and requirements to qualify for a Priority #2 exception, might look the same as Priority #1 under the immigration reform USA, it is not the case. First of all, you do not need to show ‘compelling’ or ‘exceptional’ circumstances. Brian Lerner states this is huge. The burden of proof needed to show why prosecutorial discretion should be exercised is much less with a Priority 2 request. Additionally, in Priority 2, you must only show that you will not be a threat to national security, whereas under Priority 1, you must show not only you will not be a threat to national security, but to border security or public safety. Thus, the immigration reform USA makes it abundantly clear that it will be easier to get prosecutorial discretion granted under Priority 2, rather than Priority 1.

Priority 3 Exceptions
As you might already guess, Brian D. Lerner explains, Priority #3 is the least priority given to deporting people. The immigration reform USA states that Priority #3 which basically consists of persons issued a final order of removal after January 1, 2014, but do not fall under the other priorities.

In order to be issued prosecutorial discretion if you fall under Priority 3, it must be shown that in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. Thus, Brian D. Lerner states that under immigration reform USA, this burden is even less than Priority 2. No arguments need to be made about national security. Rather, it must be shown that there is no threat to the integrity of the immigration system, or in the alternative, you are not an enforcement priority. Brian Lerner states it is a bit ambiguous what exactly is meant by ‘integrity to the immigration system’, but the fact it is listed on Priority 3 exceptions, would mean it has the least amount of burden to prove.

Therefore, there are ways to argue that prosecutorial discretion should be exercised in each and every priority. Brian Lerner reminds you that you should have the packet for prosecutorial discretion exercised in a very persuasive manner and get a qualified immigration attorney to help comply with the requirements of the immigration reform USA.

The new immigration reform bill makes changes to prosecutorial discretion

The immigration reform bill just issued by President Obama is actually not a ‘bill’ per se, but rather, an executive order. One part of the order was a comprehensive memo by the Secretary of the Department of Homeland Security that changed, altered and made in some respects clearer the priorities for deporting people and/or putting people in deportation proceedings.

Brian D. Lerner, Immigration Attorney, states that the immigration reform bill that deals with priorities has three major parts. The highest priority is referred to as Priority 1, second highes t is Priority 2 and of course the third and least preference is Priority 3. Therefore, states Brian Lerner, if you will be requesting prosecutorial discretion and you are under Priority 3 of the immigration reform bill, you should have the highest chance of success.

Priority 3 of the immigration reform bill states as follows: Priority 3 (other immigration violations): Priority 3 aliens are those who have been issued a final order of removal on or after January 1, 2014. The immigration reform bill states that aliens described in this priority, who are not also described in Priority 1 or 2, represent the third and lowest priority for apprehension and removal. Hence, states Brian Lerner, it is listed by the Secretary of Homeland Security that is the lowest priority. This is quite interesting, because usually somebody with a prior removal order will get one of the highest priorities from immigration.

Resources should be dedicated accordingly to aliens in this priority according to the immigration reform bill. Priority 3 aliens should generally be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. Unfortunately, it is this part of Priority 3 of the immigration reform bill that gives most concern. It puts a great deal of discretion in the officer at the lowest levels the ability to basically believe that removing somebody is always an enforcement priority. Brian Lerner states that it is this section that also is the most ambiguous and unclear. Perhaps in the months to come before the regulations are issued, there will be clarification as to this last part of Priority 3.

Brian D. Lerner explains in more detail the immigration reform bill and its reference to a ‘final order of removal’. It is necessary, explains Brian Lerner to know what is meant by the term ‘final order of removal’. An order of removal made by the immigration judge at the conclusion of proceedings under section 240 of the Act shall become final: (a) Upon dismissal of an appeal by the Board of Immigration Appeals; (b) Upon waiver of appeal by the respondent; (c) Upon expiration of the time allotted for an appeal if the respondent does not file an appeal within that time; (d) If certified to the Board or Attorney General, upon the date of the subsequent decision ordering removal; (e) If an immigration judge orders an alien removed in the alien’s absence, immediately upon entry of such order; or (f) If an immigration judge issues an alternate order of removal in connection with a grant of voluntary departure, upon overstay of the voluntary departure period, or upon the failure to post a required voluntary departure bond within 5 business days. Brian Lerner states that if the respondent has filed a timely appeal with the Board, the order shall become final upon an order of removal by the Board or the Attorney General, or upon overstay of the voluntary departure period granted or reinstated by the Board or the Attorney General.

The immigration reform bill does give a lot of hope to the families and to foreign nationals here in the U.S. However, Brian Lerner states there are ambiguities in the Priorites memo and you should get an experienced attorney to help you.

Priority #2 of immigration reform bill latest news give 2nd tier for enforcement of deportations

The immigration reform bill latest news is very good news for people who are here in the U.S. illegally. There is an expanded DACA, a new DAPA and a completely new memo on prosecutorial discretion and when to exercise the authority to put someone into removal proceedings and to try to deport them.

 

The new memo, explains Brian D. Lerner based upon the immigration reform bill latest news is divided into priorities. Basically priority 1 is who gets put into removal proceedings and who is targeted for deportation. As you would expect, claims Brian D. Lerner, it would be those with various kinds of crimes and those who have committed aggravated felonies.

 

However, there are other priorities in the immigration reform bill latest news. Priority 2 consists of (misdemeanors and new immigration violators). The immigration reform bill latest news states that aliens described in this priority , who are also not described in Priority 1, and Brian D. Lerner states that this represents the second-highest priority for apprehension and removal. Note it is the 2nd highest which means that it will be easier to get a Prosecutorial Discretion request granted.

 

The immigration reform bill latest news states on priority 2 that resources should be dedicated

accordingly to the removal of the following:

 

(a) aliens convicted of three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses for which an essential element is the alien’s immigration status, provided the offenses arise out of three separate incidents. Brian Lerner states that this element seems to be met whether it is significant or insignificant misdemeanor offenses (unless of course we are talking only about traffic offenses).

 

The immigration reform latest news lists the second subcategory under Priority 2 as follows:  (b) aliens convicted of a “significant misdemeanor,” which for this purpose

is an offense of domestic violence ; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or  trafficking; or driving under the influence; or if not an offense listed above, one for which the individual was sentenced to time in custody of 90 days or more (the sentence must involve time to be served in custody, and does not include a suspended sentence). Thus, the Law Offices of Brian D. Lerner states that assuming the particular situation does not fall under subcategory(a), that only a single crime will permit satisfying the requirement of this section under Priority 2.

 

The immigration reform latest news for the differing priorities lists the third subcategory as follows:  (c) aliens apprehended anywhere in the United States after unlawfully entering or reentering the United States and who cannot establish to the satisfaction of an immigration officer that they have been physically  present in the United States continuously since January 1, 2014. Brian D. Lerner explains that this element is quite interesting in that it does not outright put somebody who entered illegally in this preference of priority 2 removals. Rather, it would seem based upon the language of the immigration reform latest news that if you can properly show you have been in the U.S. since January 1, 2014, that you will not fall under this section.  While it might not be clear, the immigration reform latest news does seem to imply that if you re-entered illegally after a deportation order that it could be argued you do not fall under this subsection.

 

The immigration reform latest news gives the last element of what makes Priority 2 of  enforcement as follows: (d) aliens who, in the judgment of an ICE Field Office Director, USCIS

District Director, or USCIS Service Center Director, have significantly abused the visa or visa waiver programs. Brian Lerner states that this element both gives more room to argue that prosecutorial discretion should be mandated to not deport these people, but on the other side, it does give a significant amount of discretion to the immigration officer to put the person into deportation proceedings.

 

The immigration reform latest news states that these aliens listed in Priority 2 should be removed unless they qualify for asylum or another form of relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field Operations, USCIS District Director, or users Service Center Director, there are factors indicating the alien is not a threat to national  security, border security, or public safety, and should not therefore be an enforcement priority. Therefore, the immigration reform latest news shows that there is certain room in Priority 2 to argue there should not be deportation.

 

Prosecutorial Discretion: How to avoid deportation

Prosecutorial Discretion: A tool to Avoid Deportation

Question: I got into a minor criminal situation and now I am very afraid that I will be placed into deportation proceedings. What can I do?

Answer: There are several forms of relief that you might be eligible for in proceedings. However, one very effective tool that I would look into would be known as Prosecutorial Discretion.

Question: What is Prosecutorial Discretion?

Answer: Prosecutorial Discretion can be used in a variety of different situations. Some examples would include: deciding to issue or cancel a notice of detainer; deciding to issue, reissue, serve, file, or cancel a Notice to Appear(NTA); focusing enforcement resources on particular administrative violations or conduct; deciding whom to stop, question, or arrest for an administrative violation; deciding whom to detain or to release on bond, supervision, personal recognizance, or seeking expedited removal orother forms of removal by means other than a formal removal proceeding in immigration court.

Question: What happens if the Prosecutorial Discretion is granted? What would I get?

Answer: Some will depend upon what exactly you are asking for and where in the proceedings you are. However, generally, if granted, Prosecutorial Discretion can stop a deportation/removal proceeding, or can keep one from being filed in the first place, or can reopen a removal order already issued. It can settle or dismiss a proceeding; grant a deferred action, grant parole, or staying a final order of removal; or it can respond to or join in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.

Question: What factors are considered when deciding on whether to grant a request for Prosecutorial Discretion?

Answer: There are a lot of different items that are considered. They are as follows:

– the agency’s civil immigration enforcement priorities;
the person’s length of presence in the United States, with particular consideration given
to presence while in lawful status;
the circumstances of the person’s arrival in the United States and the manner of his or her
entry,particularly if the alien came to the United States as a young child;
the person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are
pursuing a college or advanced degrees at a legitimate institution of higher education in
the United States;
whether the person, or the person’s immediate relative,has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
combat;
the person’s criminal history, including arrests, prior convictions, or outstanding arrest
warrants;
the person’s immigration history, including any prior removal, outstanding order of
removal, prior denial of status, or evidence of fraud;
whether the person poses a national security or public safety concern;
the person’s ties and contributions to the community, including family relationships;
the person’s ties to the home country and condition in that country;
the person’s age, with particular consideration given to minors and the elderly;
whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
whether the person is the primary caretaker of a person with a mental or physical
disability, minor, or seriously ill relative; ;
whether the person or the person’s spouse is pregnant or nursing;
whether the person or the person’s spouse suffers from severe mental or physical illness;
whether the person’s nationality renders removal unlikely;
whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; and
whether the person is currently cooperating or has cooperated with federal, state or local
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the Department ofLabor, or National Labor Relations Board, among others.
Question: Can I do this myself?

Answer: It is always possible, but it would be much better for you to obtain professional help. It is not easy to get this approved, but it is certainly possible if done properly.

Another win for the Law Offices of Prosecutorial Discretion

Prosecutorial Discretion granted for a family of 3; father, mother and daughter. Parents had applied for cancellation of removal for non Lawful Permanent Residents, but they did not have a very strong case. Daughter also applied but did not have a qualifying relative, so she needed one of her parents to be granted.

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