Law Offices of Nicklaus Misiti obtains Prosecutorial Discretion for client

NEW YORK - Oct. 29, 2013 - PRLog -- Recently, Law Offices of Nicklaus Misiti was able to terminate removal proceedings against their client by convincing the ICE trial attorney to grant prosecutorial discretion.  Our client was a long time Lawful Permanent Resident “LPR” with a  US citizen spouse and strong family ties in the US.  She had no prior run ins with the law, except a minor misdemeanor she plead guilty to a number of years ago.  ICE decided to charge her as deportable based upon this misdemeanor and that is when our firm went to work preparing the application to terminate proceedings.

What is prosecutorial discretion?

On June 17, 2011, John Morton, Director of Immigration and Customs Enforcement (ICE), issued two new memoranda encouraging the expanded use of prosecutorial discretion by ICE officers, agents, and attorneys in all phases of civil immigration enforcement.

         The memo states the factors that will influence a decision on prosecutorial discretion will vary according to the nature of the case.  However, there are some general guidelines about important /factors that the agency will consider in most, if not all cases.  This list of factors, taken from the June 17, 2011 memorandum, Morton, “Exercising Prosecutorial Discretion,” at 4, includes:

• The agency’s civil immigration enforcement priorities;

• The person’s length of presence in the U.S., with particular consideration to

presence in lawful status;

• The circumstances of the individual’s arrival, particularly if arrival was as a

young child;

• Graduation from a U.S. high school and the pursuit of higher education in the

U,S,;

• U.S. military service of the individual or immediate relative, particularly combat

service;

• Criminal history;

• Immigration history;

• Whether the person is a national security or public safety concern;

• Ties and contributions to the community, including family ties;

• Ties to and conditions in the home country;

• Whether the person is elderly or a minor;

• Whether a spouse, parent or child is a U.S. citizen or permanent resident;

• Whether the person is the primary caretaker of any person with a disability or

illness or a minor relative;

• Whether the person or a spouse is pregnant or nursing, or suffers from a severe

mental or physical illness;

• Likelihood of removal;

• Likelihood of permanent or temporary immigration relief; and

• Cooperation with federal, state or local law enforcement (including the Department of Labor and the National Labor Relations Board).

         The decision should be based upon the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.  Id. at 8.  Significantly, the 2011 Morton memos also identify certain classes or individuals warranting “particular care.”  These include veterans and members of the U.S. armed forces; long-time permanent residents; minors and the elderly; those present in the U.S. since childhood; pregnant and nursing women; victims of domestic violence, trafficking, or other serious crimes; and those with serious health conditions or disabilities.

         Predictably, certain negative factors will warrant “particular care and consideration,” including: risks to national security; serious felons, repeat offenders, or those with a lengthy criminal record; known gang members; and individuals with an egregious record of immigration violations, including illegal reentry.

Who can apply for prosecutorial discretion?

Any individual in removal proceedings or who has an outstanding removal order.

How to apply for prosecutorial discretion?

Applications for discretion are very serious matters.  In order to qualify an applicant must be before an immigration judge or have already been ordered removable by such a judge.  It is highly advisable anyone in removal proceedings or otherwise interested in obtaining prosecutorial discretion hire an immigration attorney who handles these cases and can prepare such an application.

Where can I find an immigration attorney experienced with Prosecutorial discretion and removal proceedings?

To discuss your potential case you can contact the Law Offices of Nicklaus Misiti at 212 537 4407 or via their website www.misitiglobal.com.  His firm handles deportation/removal defense and has prepared numerous successful application for Prosecutorial Discretion.