Saturday, September 10, 2011

Prosecutorial Discretion - How It Works

I was in Immigration Court on Thursday. A couple of cases, including my own, bought up the President's announcement concerning the new policy toward exercising prosecutorial discretion. Applications for prosecutorial discretion have to be made directly to the Chief Counsel's Office. So, in Washington, DC and Virginia, and alien would write directly to Rafael Choi, the Chief Counsel for this area. The application should contain all information necessary to convince the Chief Counsel to exercise his discretion not to seek removal of the alien. In the meantime, if there is no hope of any other ground of relief, ICE will not support release on bond.

In my case, the only relief we could request was voluntary departure. ICE would not agree to release on bond. Nor would ICE agree to voluntary departure with a voluntary departure bond. But, ICE did agree that we could apply for prosecutorial discretion even after the Judge issued the voluntary departure order.

Best practice, then, is to make the application before coming to Court, as an application for prosecutorial discretion will not be a basis for an Immigration Judge granting bond.

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