Prosecutorial discretion is a defense against removal—for some people. Deferred Action for Childhood Arrivals (DACA) is a type of prosecutorial discretion. This is not for everyone, however, so it is important to understand the limits and advantages of prosecutorial discretion, and who is actually able to benefit from it.
First of all, if you are undocumented but you are not in the removal (or deportation) process, then you must NOT contact Immigration and Customs Enforcement (ICE), not without talking to an immigration lawyer first. You might not need prosecutorial discretion, and if you ask for it you might be refused, not to mention deported. Prosecutorial discretion is something you probably will only want to pursue if you absolutely need it.
What is this exactly? It could mean that ICE could get your case closed, or they might request that an immigration judge take another look at your case so that you can apply for relief from removal. As mentioned above, DACA is a form or prosecutorial discretion, as is deferred action for victims of domestic violence who are pursuing a green card through a relationship. This prosecutorial discretion is available to some because ICE needs to prioritize some deportation processes over others, that is, they can ignore immigration cases where the person is not a threat to security or safety so that they can focus on deporting people who pose a threat. But receiving this prosecutorial discretion will vary according to the ICE employee, thus making it tricky to actually obtain this.
In fact, for some people, it is a better idea to go to court to fight against deportation. Knowing when this would be better than prosecutorial discretion can be a highly complex and technical matter though. This is not a decision that you want to make without an immigration lawyer.
What can prosecutorial discretion do? Ideally, this could put a stop to the deportation process and close your immigration case for good, or at least for several months. This would not necessarily give someone a work permit, however. If you need further protections, such as asylum, or other immigration benefits, then you need to apply for these separately. But prosecutorial discretion can buy you the time that you need to get your immigration applications accepted.
Who qualifies for prosecutorial discretion? Technically speaking, just about anyone. It is not as simple as that, of course, and you want to have as strong a case as possible. If there are a lot of criminal convictions, or a serious offense on someone's record, then the chances are slim for getting this application accepted. If you have a criminal history, then you need to consult an immigration lawyer. With legal counsel, you can determine whether or not prosecutorial discretion will work for you, and if you have any alternative defenses against deportation.
Another thing that could weigh in on your prosecutorial discretion application is your marriage or domestic partnership. If you have a spouse or domestic partner who is a permanent resident of citizen of the United States, this will strengthen your application, but will not guarantee its success. According to the Department of Homeland Security, this "family relationship" that strengthens your application applies to both opposite-sex and same-sex couples.
As with every single process in immigration law, you do not want to be without the help of an experienced and excellent immigration lawyer. Not only is the choice of what to apply for difficult, but so is crafting a strong case. If your application is denied, then you also need the help of a legal expert. Do not hesitate to call an immigration lawyer today!