May 30, 2024

Prosecutorial Discretion at Immigration Court (EOIR)

During Biden’s Presidency, the deportation policy was that he ordered the courts to reduce the number of people in court proceedings and to focus on deporting criminals and those who pose a threat to the United States. For those who are considered low risk the option of prosecutorial discretion was offered.  Prosecutorial discretion is the option of asking Immigration and Customs Enforcement (ICE) to dismiss your case from immigration court if you are not a priority to remove or deport from the USA.

Eligibility and Process

Those who are considered low-risk may apply for prosecutorial discretion. Those who have minor to no criminal history, who do not pose a threat to the border and national security, or public safety, never been involved in alien smuggling or fraud, never misrepresented themselves to obtain immigration benefits and those with extreme medical conditions may also apply.

There are a few ways to request for your case to be dismissed. The first option is to have an attorney submit evidence to the court demonstrating that you are not a priority to be removed.  You may also request a dismissal by asking the immigration judge at your hearing. If your case was denied and you were granted a removal order you may request dismissal after filing an appeal.

ICE might also request for your hearing to be dismissed and offer to dismiss your case.

An attorney may recommend prosecutorial discretion if he believes that your case will end up being denied and ordered removed from the country.

Drawbacks

One of the drawbacks of getting your case dismissed is that it does not give you any official immigration status. You are allowed to stay in the United States; however, you won’t have any formal status.

If you were allowed to apply for an Employment Authorization Document (EAD) also known as a work permit, you’ll no longer be able to renew it once your case is dismissed. 

Benefits 

One of the benefits of getting your case dismissed is that it allows you to avoid deportation. For many people, remaining in the United States is a priority and a safe way to stay in the country as only 1-2% of asylum cases are approved. Once your case is dismissed, you’re no longer in danger of being deported. You no longer have to attend immigration hearings, face a judge, or check in with ICE. Bond money is also returned if you had to pay a bond. 

Getting your case dismissed may also open up possibilities to pursue other options to adjust your status in the United States. You might be eligible to file an application with USCIS through a family member or refile your asylum application with USCIS where the approval rates are slightly higher than court.

If you are interested in applying for prosecutorial discretion or would like more information Attorney Diana Bailey of Portland and Beaverton has over 25 years of immigration law experience.  Please call our office for a free telephone consultation at 866-521-6422.