The Department of Homeland Security (the prosecutor in Immigration Court) has been implementing new rules related to its "enforcement priorities." These rules apply to people who have cases pending in Immigration Court, meaning that the U.S. government is trying to deport them. Not surprisingly, the government wants to deport some people more than others. Under the new rules, cases that are not a priority for removal may be dismissed as a matter of prosecutorial discretion or PD. When that happens, the government has stopped the removal/deportation process and the noncitizen is able to remain in the United States.

Here, we'll talk about who might qualify for PD, the different types of PD, and how to request PD from DHS.

Before we get to these questions, let's look at why DHS is offering PD in the first place. According to DHS, the appropriate use of PD "can preserve limited government resources, achieve just and fair outcomes in individual cases, and advance DHS’s mission of administering and enforcing the immigration laws of the United States in a smart and sensible way that promotes public confidence." Currently, there are almost 1.8 million noncitizens in Immigration Court. Some are a higher priority for deportation than others, and DHS hopes to use PD to set aside less pressing cases in order to focus resources on people deemed a priority for removal.

Who qualifies for PD? There are three categories of noncitizens considered a priority for removal: Threats to National Security, Threats to Public Safety, and Threats to Border Security. People who are (or may be) terrorists or spies, criminals, and people who try to enter the U.S. illegally are all examples of enforcement priorities.

For people with criminal issues, DHS considers a number of aggravating and mitigating factors when deciding whether to offer PD. These include the type of crime and how serious it was, harm to the victim(s), the sentence imposed, and whether the crime involved violence. In terms of mitigating factors, DHS considers the age of the noncitizen, how long he lived in the United States, mental health issues, family and community ties, the impact of the person's removal on others, military or other public service, and whether the person faces danger in the home country.

A "threat to border security" refers to people who entered or attempted to enter the U.S. unlawfully on or after November 1, 2020. This category also applies to people who apply for admission to the United States but who are inadmissible, including people who are inadmissible due to criminal issues. DHS also considers aggravating factors--including the use of fraudulent documents, making a fake claim for asylum or other immigration benefit, and involvement in alien smuggling--and mitigating factors, including flight from persecution, age, mental health issues, and ties to the U.S.

If you are not an enforcement priority, you should have a reasonable chance to obtain PD. And sometimes, DHS will move to dismiss your case whether you like it or not (you can try to oppose this, especially in an asylum case, but DHS often gets what it wants). Remember that the "D" in PD stands for "discretion," meaning that DHS can agree to PD or not--it is totally up to them--and there is not much you can do about it. The PD memo offers more guidance about when DHS should favorably exercise discretion, but in the end, it is their decision.

What is PD? Assuming DHS offers PD, there are several ways the Immigration Court case can end.

The outcome most favored by DHS--and prioritized in the PD memo--is "dismissal." Under this option, the case is dismissed or terminated and the person is no longer in removal proceedings. The benefit here is that no one is trying to deport you and you can remain in the U.S. indefinitely (unless DHS initiates a new case against you by serving a new Notice to Appear). If you are eligible to obtain status in the U.S. some other way (most commonly, through marriage to a U.S. citizen), you can pursue that option. Also, for those who enjoy running in circles, if your case in court is dismissed, you could try filing affirmatively for asylum (you would likely need to file the new I-589 at the Atlanta Vetting Center - see these Special Instructions).

One big down side of dismissal is that if you have a pending application for relief (such as asylum) and you have an Employment Authorization Document ("EAD") based on that application, your EAD will become invalid when the case is dismissed and you will not be able to renew your EAD in the future. This means that you will not be able to work legally in the U.S. and you may not be able to obtain a driver's license (unless you have some other way to obtain an EAD). In addition, if you accept PD, you lose your opportunity to receive a decision on the merits of your case, meaning you will not be able to try to obtain permanent status here. For asylum seekers, this can be a difficult choice: Accept PD and you will not be deported, but you will not get a final decision in your case and you will be left in limbo. Each person will have to make their own decision here, depending on your goals and the strength of your asylum case.

There are possible alternatives to dismissal. For example, PD could result in "administrative closure," where the case remains "alive" but is removed from the court's schedule. This option is strongly disfavored by DHS (and by many judges), but if you receive administrative closure, you can continue to renew an asylum-pending EAD, since the case is technically still pending. On the down side, it is easier to re-start the case to try to deport you.

Other forms of PD include stipulating to relief, where DHS agrees that you should be granted asylum (or some other immigration benefit), and continuances, where your case is delayed for a period of time.

Also mentioned in the memo is the possibility of a joint motion to reopen. This is used when a person has already been ordered deported, but remains in the U.S. and has some avenue for relief available. For example, I had a client who missed a hearing and was ordered deported in 2008. We asked--and DHS agreed--to reopen the case so this person could apply for status based on marriage to a U.S. citizen. We are still waiting (and hoping) for the judge to reopen the case and then dismiss the case without a deportation order. If that happens, the client will be eligible to obtain a Green Card based on marriage.

How to request PD? Normally, your lawyer would request PD by emailing DHS, but you can request PD yourself, without a lawyer. Each local DHS office has an email address dedicated to PD requests. As far as I can tell, these email addresses are not publicly available, but if you call your local office and ask the receptionist, they should give you that information. My experience has been that DHS is responsive to email requests, though sometimes it takes a few days, and they do not always agree to PD. DHS has a helpful website that breaks down the requirements for PD and offers guidance about how to apply.

PD is certainly not for everyone. Most of my clients prefer to move forward with their cases. But for some people, especially those with alternative forms of relief or very weak cases, PD may be the best option.

Originally posted on the Asylumist: