Prosecutorial Discretion in Virginia Cancellation of Removal Cases

Prosecutorial discretion in Virginia is the instance of asking for positive discretion from a prosecutor in your cancellation of removal case, which can mean more than one thing. In some cases, if you have really strong equities and maybe you have the possibility of applying for some other sort of status if your immigration court proceedings were terminated, then you can request prosecutorial discretion from the prosecutor to terminate your proceedings to apply for something different, like being served an affirmative VAWA application in front of USCIS.

It can also be important if you have problems meeting the stop time rule presented and you do not have the physical presence requirements in order to qualify. In these cases, you can request that the prosecutor exercise discretion to terminate the proceedings and reissue the NTA such that you meet the physical presence requirements.

Prosecutorial Discretion Factors

One way someone can request prosecutorial discretion is if they have a strong case, such as a VAWA cancellation case, and they have police reports and medical records, and it is a well-documented case of abuse, then they can request the prosecutor stipulate the facts that are presented in their argument. They can choose not to oppose the case and they can find this out before the immigration court proceedings. If they do not have any opposition to it, they can avoid having to testify extensively about the abuse in front of the judge.

Prosecutorial discretion in Virginia will depend on a case-by-case situation about what someone is asking the prosecutor for, but it is things they look at or just the positive equities in someone’s case. This includes the amount of time that individual has in the US, whether or not they have US citizenship, or if there are children who are going to be impacted by their removal. Someone’s overall eligibility for release depends on that prosecutor exercise of discretion. It is on a case-by-case basis because the equities in each case are different and the reason someone will be requesting prosecutorial discretion will be different in every case.

Negative Aspects

If someone has an extensive criminal record or a lot of negative equities in their case, then the prosecutor is going to want to work harder to prohibit them from obtaining lawful status. It means if a prosecutor thinks that they are a high priority for removal then they are going to try harder to make sure that they contest everything that that individual is trying to argue in front of the court. The most common reason this will happen is if an intending immigrant has a serious criminal record, that is what they are supposed to focus on in prioritizing their energies for removal.

Positive Equities

Positive equities is again a case-by-case definition, but it basically means the good things about someone’s case that will balance out the bad things—the duration of time that they have been in the United States, the family members who have lawful status in the United States, particularly US citizen children, and ways that they have been a member of the community where they have positively contributed to their community and to the country since the time they have been here. All these things can be considered when submitting an application for prosecutorial discretion.

Benefits of an Immigration Attorney

The most important reason working with an immigration attorney will be important in making the most of the prosecutorial discretion is best knowing what you are able to ask of the prosecutor. There is a lot that you can do by working with the prosecutors prior to the day of the individual hearing. If it is a compelling case, then the prosecutors prefer you do that because it will save them the work of preparing for a trial as well. If there is a way to simplify things before an individual hearing, it is in everyone’s best interest.

The second reason an immigration attorney is important in making the most of the prosecutorial discretion in Virginia is to best know how to prevent these applications, as it will be different in every court. Often, there is an email address and they will have one or two attorneys that are exclusively in charge of evaluating requests for prosecutorial discretion and you need to know exactly where this is in the application and who to talk to.

Sometimes there can be a specific individual within the prosecutor’s office that attorneys are used to working with that can be more amenable to prosecutorial discretion. It is easier to contact them as they may know the actual prosecutor who is in charge of someone’s case and may be able to avoid submitting it to the general prosecutorial discretion email address or hotline. There is a lot of variation from court to court and it is important to have an immigration attorney to help you navigate that.

Contacting an Attorney

Experienced immigration attorneys in Virginia have successfully argued for a number of cancellation of removal cases and have experience in front of the judges in this region so they know the audience before going forward. They have experience in all different types of prosecutorial discretion requests and will be able to identify if there is something that needed to be addressed prior to the individual hearing.

An attorney can help you with presenting the case in a thorough manner and a convincing matter when you submit the application for prosecutorial discretion and doing it the right way. You do not want to overburden these prosecutors with an application that is not submitted to the proper address or at the proper time. You definitely want to make their job easier by making your application easier to understand and you need to be clear about what type of prosecutorial discretion you are asking for. You need to be clear about what exactly you are asking for in your application.

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