Friday, December 9, 2011

What does Prosecutorial Discretion mean to undocumented immigrants?

Rumor has it that Pres. Obama passed a new law that will allow all illegal immigrants to stay in this country as long as they do not have a criminal record.  Many clients and friends call to ask for confirmation.

Let’s start with a few corrections of this statement.  1) Pres. Obama is unable to unilaterally pass a new law, only Congress is able to make laws. 

So what really happened is that Pres. Obama, has decided to make use of an existing law, whereby the agency charged with enforcing immigration laws, can use Prosecutorial Discretion. What is Prosecutorial Discretion?  It is to say ICE may prioritize their focus in deportation proceeding. Specifically, they would decide to remove those with criminal record first and give you less attention.

What does that mean to you? If you are in removal proceeding and prosecutorial discretion occurs, the proceeding might be terminated, which only means you are not to be removed in the near future. However, this does not grant work permit, nor legal immigration status. If you are not in removal proceeding, you can’t apply for prosecutorial discretion.

In sum, what has been spitted out is just a memo President Obama send out regarding implementing existing law. I don’t see big hope for undocumented immigrants.