immigration florida orlando Prosecutorial Discretion lawyer


The agency (Immigration and Customs Enforcement- ICE) can decide under specific circumstances not to deport an individual who may otherwise be removable from the U.S. A detailed John Morton memorandum was published on June 17, 2011 to guide U.S. Immigration and Customs Enforcement officers on exercising prosecutorial discretion in terms of what factors may be considered. Prosecutorial discretion can take many forms:

  • 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 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, 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 an order of removal; 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.


ICE looks at several criteria when exercising prosecutorial discretion:

  • The agency’s civil immigration enforcement priorities;
  • The person’s length of presence in the United States, with particular consideration given to presence while in lawful status;
  • The circumstances of the person’s arrival in the United States and their manner of his or her entry, particularly if the alien came to the United States as a young child;
  • The person’s pursuit of education in the United States, with particular consideration given to those who have graduated from a U.S. high school or have successfully pursued or are pursuing college or advanced degrees at a legitimate institution of higher education in the United States;
  • Whether the person, or the person’s immediate relative has served in the U.S. military, reserves, or national guard, with particular consideration given to those who served in combat;
  • The person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;
  • The person’s immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;
  • Whether the person poses a national security or public safety concern;
  • The person’s ties and contributions to the community, including family relationships;
  • The person’s ties to the home country and conditions in the country;
  • The person’s age, with particular consideration given to minors and the elderly;
  • Whether the person has a U.S. citizen or permanent resident spouse, child or parent;
  • Whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
  • Whether the person or the person’s spouse is pregnant or nursing;
  • Whether the person or the person’s spouse suffers from severe mental or physical illness;
  • Whether the person’s nationality renders removal unlikely;
  • Whether the person is likely to be granted temporary or permanent resident status or other relief from removal, including as a relative of a U.S. citizen or permanent resident;
  • Whether the person is likely to be granted temporary or permanent resident status or other relief from removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and
  • Whether the person is currently cooperating or has cooperated with federal, state or local law enforcement authorities, such as ICE, the U.S. Attorneys or Department of Justice, the Department of Labor, or National Labor Relations Board, among others.

NOTE that the list is not exhaustive and prosecutorial discretion is considered on a case-by-case basis. The decision will be made on the totality of the circumstances.

Call Attorney Poudat, Board Certified Immigration Attorney in Orlando, Florida, today for more information and find out whether you qualify!