Grant of Prosecutorial Discretion for Father of Infant Child with Down Syndrome

Grant of Prosecutorial Discretion for Father of Infant Child with Down Syndrome

Our Philadelphia immigration lawyers requested and received prosecutorial discretion for the father of a young son with Down Syndrome.

As described in ICE Director John Morton’s 2011 memorandum “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” ICE must prioritize its prosecutorial efforts since the agency does not have sufficient resources to address the high number of administrative violations it faces.  ICE exercises prosecutorial discretion in a multitude of situations, such as:

  • deciding to issue or cancel a notice of detainer;
  • deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
  • focusing enforcement resources on particular administrative violations or conduct;
  • deciding whom to stop, question, or arrest for an administrative violation;
  • deciding whom to detain or to release on bond, supervision, personal recognizance, or other condition;
  • seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court;
  • settling or dismissing a proceeding;
  • granting deferred action, granting parole, or staying a final order of removal;
  • agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal;
  • pursuing an appeal;
  • executing a removal order; and
  • responding to or joining in a motion to reopen removal proceedings and to consider joining in a motion to grant relief or a benefit.

The examples above display how prosecutorial discretion is not always beneficial to an alien in removal proceedings as ICE, based on its discretion, may find an alien to be especially problematic, thereby leading ICE to focus more attention and resources on removing that alien.  However, prosecutorial discretion does permit ICE to shift its attention and limited resources away from aliens with more sympathetic situations whose cases are “low priority.”  Director Morton’s memorandum lists five relevant factors ICE’s attorneys should examine when determining whether it should exercise prosecutorial discretion:

1) The person’s length of presence in the United States;

2) Whether the person has a U.S. citizen or permanent resident spouse, child, or parent;

3) Whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;

4) The person’s ties and contributions to the community, including family relationships; and

5) Whether the person poses a national security or public safety concern.

ICE’s determination depends on the equities present in each of these factors and whether they weigh in favor of exercising prosecutorial discretion in the alien’s favor or, in other case, to his or her detriment.  Even if ICE does determine that an alien merits favorable prosecutorial discretion in the form of administratively closing the alien’s removal proceedings, ICE still retains the right to reopen the alien’s removal proceedings pursuant to Section 240A of the Immigration and Nationality Act.

Our Philadelphia immigration lawyers presented a strong case in favor of ICE granting our client, a Colombian national, prosecutorial discretion in the form of administratively closing his removal proceedings.  First, our client had been continuously present in the United States for nearly thirteen years at the time we requested prosecutorial discretion, during which time he was an upstanding and hardworking individual.  Second, our client has two minor U.S. Citizen children.  Third, our client’s youngest child was diagnosed with Down Syndrome at birth.  Fourth, our client and his family were and still are fixtures in their local church and very well connected in their community, where two of our client’s sisters also reside.  Lastly, our client did not and continues to not pose a national security or public safety concern.

Getson & Schatz collected proof of our client’s long and continuous residence, the birth certificates of his children, his younger son’s medical records, statements from people who could attest to his strong and positive presence in their church, and criminal background checks.  Our client had been arrested twice for DUI, but our attorneys demonstrated that our client completed an Accelerated Rehabilitative Disposition and this his second charges were ultimately dismissed.  This evidence convinced ICE that our client was of “low priority” and that, “under the totality of the circumstances,” our client was deserving of favorable prosecutorial discretion.  Getson & Schatz and ICE filed a joint motion to administratively close our client’s removal proceedings based on ICE’s approval of prosecutorial discretion, and a Philadelphia Immigration Judge granted that motion, thereby allowing our client to remain in the United States to help care for his son with Down Syndrome.  We advised our client that further misconduct on his part could lead ICE to reopen his removal proceedings.