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Prosecutorial Discretion

We recently had a case of a lady who had been ordered deported 10 years before for having entered the U.S. without a visa.Notwithstanding the Order, our client remained in the U.S. She had a child eight years ago who is seriously incapacitated and our client who had worked in a hospital was unwilling to return to her country because she could not obtain a good job in her country to support herself and her child and she could not obtain in her country adequate medical care equal to that which the child is receiving here.

Although the Deportation Order was issued 10 years before, we moved to reopen the case.Our motion was denied because essentially the previous attorneys of our client never filed this Motion to Reopen or Reconsider within the 90 day period of grace that applied for this type of Motion.What to do?

We approached the Chief Counsel of the Immigration Service in New York and requested prosecutorial discretion.We emphasized the many years our client had been in the U.S., that she was a hard working employee in a hospital, that she was the sole support of her son of 8 and herself, that the child, a U.S. citizen, could not receive adequate medical treatment in her country because of the complexity of his medical condition, and that her child would die without her support and the proper medical treatment. We asked the Chief Counsel to file jointly with us a Motion to Reopen.In support of our case, we submitted to the Chief Counsel all of the hospital records of the child to prove the need that prosecutorial discretion should be exercised. After reviewing our proof, the Chief Counsel and the Immigration Judge thereupon reopened the Deportation Order. The Order of Deportation having been opened, we are now able to submit an Application for Cancellation of Removal because our client has been in the U.S. for more than 10 years and her child has serious and severe critical medical needs. The Judge should now be able to grant the child’s mother, our client, permanent residence.
The Chief Counsel had prosecutorial discretion to join in our Motion to Reopen, notwithstanding a Judge’s previous Order of Deportation 10 years before.Here a law enforcement office decided not to enforce the Deportation Order because of the humanitarian aspects of the case.Prosecutorial discretion may be applied in other instances such as to removal proceedings, detention, parole and the execution of removal orders.Prosecutorial discretion may be exercised by immigration officers in not applying a mandatory detention order in a compelling case.
The Immigration Service has limited resources that can only remove fewer than 4% annually of those cases where removal can be applied. Of the cases highest on the list for enforcement national security, public safety and border security are high on the list. Showing the Immigration Service that the arrest and prosecution of an arrested alien may not properly advance the Immigration’s primary goal, would enable favorable exercise of prosecutorial discretion.This discretion may be exercised at all stages of the Immigration process: investigation, arrests, detention, paroles, removal proceedings and the execution of final removal orders.Before a removal proceeding is commenced an authorized officer has the power to cancel it as based on extraordinarily or changed circumstances or any other reason.At a removal hearing itself, a U.S. Trial Attorney has the power to move to cancel the proceedings.Thus an able immigration attorney may be able to help a client in appropriate cases such as obtaining deferred action.Even though the deferred action is not a grant of permanent residence, it does allow a client to stay here and obtain employment authorization.This can be significant for a client who has no other option.

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