Prosecutorial Discretion: Mitigating Deportation Risk with Legal Strategy

When facing removal proceedings in U.S. immigration court, Prosecutorial Discretion (PD) can be a powerful tool. It allows Immigration and Customs Enforcement (ICE) or Department of Homeland Security (DHS) to exercise leniency—potentially closing or declining enforcement in individual cases. While not formal relief, PD offers a practical path to avoid deportation for individuals with compelling equities and lawful histories.

At Accura Immigration Law Firm, we guide clients through the uncertainty of PD requests, helping to maximize chances of relief through strategic advocacy.

Prosecutorial Discretion (PD) is a vital tool in U.S. immigration law that allows authorities to delay or stop removal actions against individuals with strong humanitarian or legal equities. It isn’t permanent relief but can provide a path to temporary stability and work authorization. PD benefits those with family ties, health concerns, or long-term U.S. residence. At Accura Immigration Firm, we build persuasive PD requests backed by thorough documentation and strategy. Our experienced attorneys guide clients in securing PD, avoiding deportation, and pursuing long-term solutions like green cards or asylum. PD is hope—and Accura ensures it’s pursued the right way.

What Is Prosecutorial Discretion?

Prosecutorial Discretion refers to DHS/ICE choosing not to pursue enforcement action. It covers a wide range of outcomes:

• Deferred action

• Stay of removal

• Case closure or termination

• Administrative closure (historically used)

PD is not a permanent status grant but rather discretionary non-enforcement. It allows individuals to remain lawfully in the U.S. temporarily, often with work authorization.

Purpose of Prosecutorial Discretion

The purpose of PD is twofold:

• Humanitarian: It preserves enforcement resources for high-priority threats and protects low-risk individuals with strong community ties (like long-term residents, U.S. citizen families, or essential workers).

• Administrative Efficiency: It helps allocate limited enforcement energy to cases that most threaten public safety or border integrity.

PD promotes fair justice while recognizing that blanket enforcement may ignore individual hardship.

Who May Be Eligible for PD?

Eligibility is based on presence of positive factors balanced against negative ones. While not formally codified, typical discretion guidelines include:

Positive Factors

• Long-term continuous residence in the U.S.

• U.S. citizen or lawful permanent resident family members

• Documented medical crisis or serious illness

• Military service or prior service

• Employment in essential industries

• Community and religious involvement

Negative Factors (May Weigh Against Discretion)

• Significant criminal convictions, especially aggravated felonies

• Repeated immigration violations or removals

• Evidence of flight risk or lack of cooperation

• National security concerns

Eligibility largely hinges on persuading ICE or a prosecutorial official that your positive discretionary equities outweigh the negatives.

Prosecutorial Discretion Process

Step 1: Recognize Your Position

Often, individuals are in removal proceedings or have received Notices to Appear (NTA). PD may be pursued either before formal proceedings start or during court cases.

Step 2: Gather and Submit a PD Request

A PD request is a written submission to ICE Counsel or to DHS leadership. It typically includes:

• Biographical information

• Immigration history and current case status

• Positive equities and compelling circumstances

• Any negative factors and mitigating context

• Supporting documentation (e.g. family ties, employment, health records, letters)

Accura assists clients in building a clear, persuasive PD packet.

Step 3: Submission and Review

The PD request is submitted with all documentation. It may go through local ICE counsel or regional supervisory offices. Review may take weeks or months. During this time, removal proceedings may be suspended or continued.

Step 4: Outcome: Grant or Denial

If granted, ICE may issue a deferred action memo, grant a stay of removal, or administratively close your case. Some individuals receive temporary work authorization (EAD). Denials often happen without court hearing; at that point, you may be able to file motions or appeals—Accura can guide this strategically.

Step 5: Next Steps After Approval

• Apply for work authorization (Form I‑765) if eligible

• Use deferred action period to pursue longer-term fixes, like family-based petitions

• Prepare for shifts, such as change of status or departure

Types of Prosecutorial Discretion

• Deferred Action: A formal DHS memo stating the individual is “low priority” and enforcement will not proceed

• Stay of Removal: Temporary administrative stay, often pending a longer adjudication

• Case Termination or Closure: ICE moves to close the removal proceedings

• Administrative Closure: Historically closing courts; now less common due to policy shifts

Each carries different rights and tactical implications. Accura helps clients understand short- and mid-term impacts.

Common Contexts for PD Use

1. Family-based asylum or adjustment pending approval

2. Asylum applicants in expedited removal queue

3. Individuals on non-immigrant visas who overstayed but have stable equities

4. Undocumented immigrants with deep community roots and citizen children

5. Those who filed naturalization but face removal orders

Pros and Cons of Prosecutorial Discretion

✅ Pros:

• Avoid immediate deportation

• Time to pursue paths to legal status

• Often grants work authorization

• Less adversarial than court proceedings

❌ Cons:

• Not a form of permanent status

• No formal right to appeal denial (depends on context)

• Subject to change in DHS guidance or leadership

• Requires regular renewal or review

Accura Immigration Law Firm's Role in Securing PD

Experience and Expertise

At Accura Immigration Law Firm, our immigration attorneys have secured PD for numerous clients through:

• Personalized equity assessments

• Strategic packet preparation

• Communication with ICE counsel

• Follow-up advocacy and renewal planning

What We Offer:

1. Initial Evaluation: Identify strengths and risk factors

2. Document Support: Collect affidavits, family records, medical evidence, letters

3. PD Packet Drafting: Clear narrative, legal rationale, equity balancing

4. Submission Coordination: Liaise with ICE or DHS offices correctly

5. Post-Decision Follow‑Up: Work authorization, renewal, or shift to permanent relief (e.g., family petition, asylum, cancellation)

6. Alternate Pathway Support: If PD is denied, explore asylum or adjustment routes

We work with client attorneys, community advocates, and supportive organizations to build compelling discretionary cases.

Sample Case Scenarios

Case A: Single parent with U.S. citizen children

A mother present in the U.S. for 15+ years receives NTA. She has no criminal record, has U.S. citizen children, and strong employment and community ties. Accura files a PD request documenting the family hardship. DHS declines removal and grants deferred action and work authorization.

Case B: Long‑time visa overstay with employment and good character

An individual overstayed their visa but has owned a small business for a decade, pays taxes, volunteers in their local community, and has no criminal record. Accura successfully negotiates case termination through PD.

Case C: Pending family-based adjustment case

An asylum applicant with a pending I‑485 adjustment based on marriage seeks PD to stop removal while green card case is adjudicated. Accura secures a stay of removal until final adjudication.

Gathering Evidence & Documentation

A PD request requires robust documentation:

• Proof of long-term U.S. residence (leases, tax returns)

• Family evidence: children’s birth certificates, spouse documentation

• Proof of employment/unincorporated business or volunteer work

• Medical records or health condition assessments

• Character references, including religious or community leaders

• Records of good moral character or rehabilitation

Accura Immigration Firm works to ensure every piece of evidence supports your discretion narrative.

Policy Overview & Legal Authority

PD is rooted in agency enforcement guidance, not statutory law. DHS and ICE periodically publish memoranda (e.g., Morton memos, Hernadez guidance) specifying how discretion is exercised. Courts have upheld that PD is a lawful practice, though the agency does not owe the applicant its discretion. Proactive legal strategy is essential in guiding interpretation—Accura stays current on policy shifts.

After a PD Grant: What to Do

• Apply for work authorization

• Monitor your removal proceedings or case file

• Prepare proof of stability and continued good behavior

• Seek long-term immigration options (e.g., citizenship petitions, family-based sponsorship, asylum applications)

• Submit renewal request annually or as policy changes

Accura Law provides ongoing guidance to maintain lawful presence and build toward permanence.

Risks and Limitations

PD is unstable: ICE can revoke deferred action at any time. It is not a defense if you travel abroad. It offers no guarantee of future visa eligibility or green card. Understanding limitations helps maintain realistic expectations and plan proactively.

Why Choose Accura Immigration Firm?

• Immigration Focus: We specialize in complex discretionary and removal defense.

• Tailored Representation: Every PD request is unique—our strategies are bespoke.

• Strong Track Record: Cases successfully closed, deferred, or stayed.

• Global Reach: Multilingual legal team helps clients across multiple jurisdictions.

• Compassionate Guidance: We recognize risk and hardship; we act with empathy and clarity.

At Accura, legal advocacy is grounded in both strategy and humanity.

FAQs about Prosecutorial Discretion

1. Is PD a form of legal status?No. It is a temporary non-enforcement measure.

2. Can I appeal if PD is denied?Depends—PD denials generally cannot be appealed administratively, but you can pursue court relief.

3. Do I get a work permit?Often yes, if DHS grants deferred action.

4. Can PD help if I’m detained?Yes. PD requests may be submitted from detention, and bond relief may be coordinated.

5. What happens if my situation changes?Inform your attorney immediately. You may need to update your packet or pursue alternative forms of relief.

Conclusion

Prosecutorial Discretion offers a lifeline to individuals at risk of removal, providing breathing space in a complex immigration system. While not permanent, it offers meaningful relief when traditional status options are unavailable. Accuracy, timing, and persuasive legal narrative are critical.

Accura Immigration Firm has extensive experience preparing PD requests, advising clients on legal strategy, and helping them transition from temporary protection to long-term lawful immigration. Our focus on both legal precision and human dignity provides clients with strong representation when it matters most.