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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.

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How can I apply for Cancellation of Removal for Lawful Permanent Residents?

I’m in Deportation Proceedings. Can I apply for Cancellation of Removal?
Question: I’m in deportation proceedings and somebody stated I can apply for Cancellation of Removal. Can you shed some light on this and what is required?
Answer: The Attorney General may cancel the may cancel the removal of an Lawful Permanent Resident (LPR) if he or she: Has been “lawfully admitted for permanent residence” for 5 years, been physically present inside the United States for 7 years, is not convicted of an aggravated felony and in the discretion of the Immigration Judge, Cancellation of Removal should be granted.
Question: What is meant by being lawfully admitted for permanent Residence for 5 years?
Answer: On it’s face, it is fairly clear. It means when you have received your lawful permanent residency and you must have at least 5 years of residency upon applying for Cancellation of Removal. However, a person who obtained LPR status by fraud or mistake is deemed to have not been “lawfully admitted for permanent residence. An example would be where LPR status fraudulently obtained through bigamous marriage, respondent ineligible for cancellation. Other examples would be: Where petitioner fully disclosed his prior drug conviction but DHS granted AOS by mistake. A person given Voluntary Departure breaks the residency and would not have qualified if less than 5 years of residency. Basically you want to look at and determine if there was any fraud at the inception of obtaining residency. If you are not an actual resident now, this will also not work.

Question:What is meant by being physically present in the United States for 7 years?
Answer: Again, on its most basic level, this would apply assuming you entered the United States legally over 7 years ago. However, there are some issues. For example, continuous residence not required where the person has served in an active duty status in the Armed Forces for a minimum of 24 months and if separated, was honorably discharged, and was in the U.S. at the time of enlistment or induction.
Admission in “any status” includes admission as a temporary resident. The 7-year period must be continuous. Although physical presence is not the test, traveling back and to a foreign country will preclude you from establishing continuous residence. The 7-year period is deemed to end when the person is served with an Notice to Appear or has committed an offense that renders him or her inadmissible or removable Applicant may accrue a new 7 years when he sought to reenter as LPR after commission of a crime.
Question: What is meant by an aggravated Felony?
Answer: Since 1996, the definition of what is considered to be an aggravated felony has greatly increased. Therefore, if the Immigration Judge rules that you have committed and aggravated felon, then you will not be eligible for Cancellation of Removal for Lawful Permanent Residents. Now if you happen to have an undisputed aggravated felony, then it would be advisable to try to seek criminal relief on that particular crime so that you can either vacate it or reduce it so that you will not be considered an aggravated felon.

Question: If I do not meet either the 5 years of Lawful Permanent Residency, or the 7 years of physical presence, can I use the presence of my mother or father who would easily meet these requirements and add it to my current residency?
Answer: The Board of Immigration Appeals has held that a parent’s LPR status may not be imputed to give a child the necessary 5 years of LPR status to qualify for cancellation. It has been held that it is a reasonable construction of the statute to require each applicant to separately meet the residence requirements, and neither the 5 years of LPR status nor the 7 years of lawful admission requires the imputation of the parents’ residence to the child.
Question: What is meant by the stop-time rule?
Answer: This is basically if you commit a specified crime within either the 5 year residency requirement or the 7 year physical presence requirement, it stops the time from accruing, thereby possibly making you ineligible for Cancellation of Removal for Lawful Permanent Residents. Therefore, it would be critical to find out when the crime occurred and whether it renders you ineligible for Cancellation of Removal for Lawful Permanent Residents.

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