Prosecutorial Discretion (PD) Request
What is a Prosecutorial Discretion (PD) Request?
Prosecutorial discretion (PD) is a key tool in U.S. immigration law that allows immigration authorities—such as Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP)—to exercise discretion in deportation cases. Essentially, these agencies can deprioritize or stop pursuing certain deportation cases, especially those considered “low priority.” In some instances, PD can also mean not issuing a Notice to Appear (NTA) in immigration court when an NTA would typically be issued.
Who Can Get PD?
Anyone in the U.S. without lawful immigration status can request prosecutorial discretion. Still, the decision often depends on positive factors like strong family ties, stable employment, community involvement, or caregiving for relatives with serious medical issues. These factors show that the person contributes to their community and should not be a deportation priority.
However, those with serious criminal records may face challenges in receiving PD. ICE will require a background check, so it’s crucial to consult an immigration attorney if you have a criminal history. They can assess your case, determine if PD is a good option, and explore alternatives like appealing or defending against deportation. In some cases, working with a criminal defense attorney to clean up your record can improve your chances for a successful PD request or strengthen your case in court.
What are the Benefits of Being Granted Prosecutorial Discretion?
While prosecutorial discretion can provide relief, it’s not always the best solution for every immigration case. PD may temporarily close your immigration case, which could prevent deportation for a time. However, it does not always lead to lawful status, permanent residency, or other immigration benefits. In some cases, it may be better to fight removal in court, file an appeal, or pursue other immigration relief options, such as asylum or cancellation of removal.
Determining the best path can be complex, and deciding whether to pursue a PD request or take another course of action depends on the specific details of your case. Before making any decisions, it’s always wise to consult a qualified immigration attorney who can help you explore all available options and guide you toward the best strategy for your situation.
How Willing Has the U.S. Government Been to Grant Prosecutorial Discretion in Recent Years?
The likelihood of a successful prosecutorial discretion request often depends on the current political climate and the administration’s immigration enforcement priorities.
Under the Trump administration, ICE was instructed to pursue deportation aggressively, with few exceptions. This meant that prosecutorial discretion was rarely granted, as nearly all undocumented individuals became enforcement priorities.
However, under the Biden administration, the U.S. government has reintroduced a focus on prosecuting individuals who pose significant risks to national security or public safety. In a 2021 memo issued by Homeland Security Secretary Alejandro Mayorkas, enforcement priorities shifted back to high-risk individuals, with a renewed openness to prosecutorial discretion for low-priority cases. Factors like long-standing U.S. residency, age, mental or physical health, and family ties are now considered when evaluating PD requests. Additionally, these guidelines make people with rehabilitated criminal histories or vacated convictions less likely to be deported.
ICE’s Office of the Principal Legal Advisor (OPLA) handles prosecutorial discretion decisions, and internal guidance continues to evolve. For the latest policy updates and case evaluations, it’s essential to work with an experienced immigration attorney.
Need Help With Your PD Request? Contact 360 Immigration Law Today!
If you are considering a PD request or want to learn more about your immigration options, contact us today at 954.667.3660 to schedule a free case consultation. We’re available by phone, Zoom, or WhatsApp to ensure that you receive the help you need wherever you are.