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.
1. You do not have to sign a voluntary deportation;
2. You can fight your case in front of the Immigration Judge; and
3. You can still get detained;
4. 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.