Prosecutorial Discretion in Maryland Immigration Cases

In many instances, prosecutorial discretion can be used in favor of an individual in removal proceedings. In these cases, prosecutors can decide to cancel proceedings such as a notice to appear, removal proceedings, and various administrative cases. It is important, at such a crucial time where the future can remain unknown, to contact an experienced attorney to assist in having the state use prosecutorial discretion in your favor. Only the help of a lawyer can ensure that your case is handled with the strength and determination it deserves.

Meaning of Prosecutorial Discretion

In cancellation of removal cases, prosecutorial discretion can mean a number of things. In some cases, the prosecutorial discretion can be exercised by a prosecutor to cancel a notice to appear (NTA), and re-issue it so that someone can meet the physical presence requirements. In other cases, like violence against women act (VAWA) cancellation cases, an individual can also apply for VAWA status in front of U.S. Citizen and Immigration Services.

In these cases, if an individual meets all the threshold requirements for VAWA cancellation, it may be in their best interest to ask the prosecutor to terminate the case in front of the immigration court, and apply for VAWA status with the U.S. CIS. If an individual meets all the other requirements, this may be their best option because the adjudication time will be shorter, they will not have to wait for a final individual hearing, and they will not have to actually testify on the abuse. An individual can do it all on paper in front of the U.S. CIS. There are a number of ways that they can exercise discretion in the right cases.

Important Factors

The prosecutors are looking for two main things. First, the individual in question must not have a criminal record that makes them a priority for law enforcement. Secondly, it is important that the individual has a route to release. This route may be outside the cancellation of removal contacts. In some VAWA cancellation cases, a person may have called the police at some point, so they may be eligible for a U Visa – another type of case adjudicated by U.S. CIS.

In these cases, it is important to present all the evidence to the prosecutor when an individual is submitting their request for prosecutorial discretion. This is to show that the person has a viable path to relief if the removal proceedings are terminated, and also that they are not a high-level enforcement priority.

Negative Factors in Prosecutorial Discretion

There are smaller negatives, such as not having ties to the community, several unlawful entries to the country, or prior immigration violations. There can also be stronger negatives, which is the individual’s criminal history.

If someone requests prosecutorial discretion, but they are of high enforcement priority, it can bring forward the attention of the prosecutor. This can possibly prompt the state to put more effort into making sure they present the best case to argue for the removal of the individual. If a person happens to not be a great candidate, it is often better to remain under the radar and hope for an ill-prepared prosecutor. If the case is not strong, it may not be best to bring it forward.

If an individual has repeated offenses, even if they are not deportable or inadmissible, it demonstrates that they are not in good standing with their community. This provides more hurdles that the individual must then overcome.

Procedures For a Request

All of the offices of the chief counsel, which is the immigration prosecutor, under the department of homeland security throughout the country, have different requirements and procedures for requesting prosecutorial discretion. It can sometimes be more informal, such as a call to the prosecutor to present evidence, or maybe through email or in person at a master calendar hearing. It is during one of these exchanges that the prosecutor may agree to terminate or administratively close the case.

Sometimes, however, they will require the request to be made formally. There is a specific email address, and a specific duty attorney in charge of evaluating all of the requests. It is of the utmost importance to know the procedure for the office the individual in question will be working with.

Even though it is more of an informal application in just requesting an exercise of discretion, the prosecutorial discretion phase may still be the most important step in the entire removal proceeding process. This is because it may result in the determination of administrative closure of an individual’s case, and can save years of stress and expenses while waiting for an individual hearing. The individual going through proceedings definitely wants to ensure that everything is accounted for when submitting their documents to the prosecutor.

Value of Positive Equities

Positive equities include the individual’s ties to the community, including contributions they have made to the community and to their family. They should also document all legal and lawfully present family members who are in the U.S. Further, an individual wants to demonstrate a lack of connection or a lack of ability to relocate back to their home country. An individual will need to show the hardship that will be caused to their family members, even if they are not the qualifying family members, and any other individuals with lawful status who rely or depend on the individual here in the United States. This will make the case stronger. Also, an individual should demonstrate any and all positive accomplishments they have achieved during their time in the U.S.

If the person in question has held a job for a long time, or has contributed to their community in other ways, they will need to document that. An individual will want the prosecutors to realize that they are a good addition to this country.

Steps An Attorney Can Take

The attorney should be very clear in what they are asking for – whether it be re-issuance of an NTA, the case to be terminated, or the case to be administratively closed so the individual can go before the U.S. CIS. An individual should not make the prosecutor try to figure out the relief being requested. They should make the request and their plans for afterwards very clear.

Prosecutors do not want to terminate or move a proceeding if it is going to result in a person remaining undocumented in the United States. This needs to be considered and planned for prior to the beginning of the request. A person should also admit and acknowledge all of the negative factors in the case to the prosecutor, because they should not have to discover anything negative later on. This could lead the court to think the individual applying is dishonest. It is important to admit any negative factors in the case at the very beginning of the request.