The Immigration Service (INS) is responsible to enforce the federal immigration laws. It also has the power to relent from enforcing these laws. The power of not to do, cannot be challenged. The Board of Immigration Appeals, for example, does not have the power to compel the INS to act if the INS chooses not to act.
THE MAP OF INS’ ENFORCEMENT POWER
If the INS believes that bringing a proceeding would not be in its interest the INS may decline to bring a proceeding even if a deportable alien has a criminal history and thereby is removable. The INS may have decided that it needs this person as a witness against narco traffikers and therefore, it may decide not to deport this person. The INS may also not prosecute a case for humanitarian reasons, as for example, a person who was brought here as a child or any elderly infirm person.
Military service for the U.S. by a deportable alien would be a reason for the INS not to go forward with a removal hearing or for a deportable alien who has a young child absolutely dependent or him/her or because of a change in a country’s conditions such as Mexico that has recently become an armed camp totally uncontrollable by its government. The INS would consider that if the deportable parent were removed, this would expose their children who would leave with him/her exposed to violence or kidnapping. Also if the INS believes that a case that would be difficult to prosecute because of strong defenses that would be raised by a respondent, the INS could decide that the case could not be won or because the cost would outweigh the benefits. There is no restriction on the INS in its decisions.
WHEN PROSECUTORIAL DISCRETION WOULD BE AVAILABLE
Prior to, during or after, a proceeding brought, the INS may decide not to start, or decide to withdraw after it has begun, or even after the case has been adversely decided. For example, after a Judge may have denied residence because the alien did not register for the draft, the INS may reverse the Judge because it believes the respondent was unaware of the requirement to register. The INS may at any stage terminate proceedings because of a life threatening illness to a respondent or close family member. If a respondent has been of assistance in a prosecution, the INS may stop a removal regardless of the stage of the proceedings. If the INS believes a removal case should not have been brought because it isn’t in the government’s interest to proceed, such as with a scientist with needed researchable skills, the INS has the power to close the case wherever or whenever the INS decides to do so. If the Service decides the reason is judicial economy or for fairness even for an alien who did not present his case well because of ineffective counsel, the INS may close the file.
If you need help or advise, call us at 212-944-9420.