Written by attorney Jose Antonio Moreno

Prosecutorial Discretion Request--Asylum Case


  1. Find the correct local DHS/ICE Office of Chief Counsel.
  2. Call the office and request the proper attorney responsible for your case.
  3. Write a letter detailing the merits of your prosecutorial discretion request.
  4. Follow up with your request.

Example of Content for Request in an Asylum fact pattern:

Dear ___________:

As per our conversation, this letter is a request for prosecutorial discretion in the above mentioned Respondent’s case and upcoming Individual Hearing on September 1, 2011 and is also a request to defer removal proceedings until guidance is given as to the new immigration policy espoused by the Obama Administration on August 18, 2011. As you know, President Obama’s new policy on immigration proceedings prioritizes deportation for those with criminal records over other individuals here without legal status and asks for a greater use of discretion by reviewing deportation cases on an individual basis, possibly sparing those who aren’t deemed a true threat to public safety from removal.

Homeland Security Secretary Janet Napolitano detailed the changes, on behalf of President Barack Obama, writing, 'Together with the Department of Justice (DOJ), we have initiated an interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities.'(Janet Napolitano Letter "Exhibit B")

The process calls for a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group to develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. Using this methodology, low priority cases are reviewed, identified, and then removed from immigration court dockets. Respondent’s case was never reviewed using this methodology. Because the DHS and the DOJ will now develop specific criteria to identify low priority immigration cases, Respondent requests such prosecutorial review immediately.

In a statement posted to the White House blog, Cecilia Munoz, the White House Director of Intergovernmental Affairs, writes: In deciding who to deport, The Department of Homeland Security and The Justice Department will apply "common sense guidelines."

In his Memorandum on prosecutorial discretion, Director John Morton lists these "common sense" factors that ICE officials should consider when deciding if removal proceedings should be initiated or continued against an individual. These factors include, but are not limited to:

  1. the person’s length of presence in the United States;

  2. the circumstances of the person’s arrival in the United States, particularly if the alien came to the United States as a young child;

  3. 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 a college or advanced degrees at a legitimate institution;

  4. the person’s criminal history, including arrests, prior convictions, or outstanding arrest warrants;

  5. the person’s ties and contributions to the community, including family relationships;

  6. whether the person has a U.S. citizen or permanent resident spouse, child, or parent;

  7. whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative. (The Morton Memorandum "Exhibit C")

Respondent is a low priority immigrant whose removal proceedings should be afforded prosecutorial discretion, and either closed or deferred. In support thereof, Respondent cites the following positive factors in his case included in the Morton Memorandum:

Respondent is a ___ National and has been present in the United States for __ years. He came to the U.S. as a last resort--he was constantly intimidated and assaulted by powerful gangs of drug traffickers demanding his service in their criminal activities. Respondent is a peaceful man, and his constant denials to acquiesce with the demands of the violent gangs culminated in an episode where Respondent was almost killed. Unfortunately, when Respondent entered the United States, he did not speak the language and was oblivious to the Asylum time bar. He subsequently did not file a timely application for asylum and now finds himself in Removal Proceedings. Considering his length of stay in the U.S. and his particular reason for entering, Respondent demonstrates two positive factors listed in Morton’s Memo supporting prosecutorial discretion.

Respondent has never been arrested or convicted, and has no arrest warrants. Therefore he poses no threat to public safety or to national security.

Respondent has two U.S. citizen children. His eldest is __ years old and his youngest is __ months old. He is a very important part of his children’s lives and cares for them regularly. He is also married to a USC and has been married for _ years. This family relationship demonstrates significant roots and ties to the U.S. community.

Respondent attended college in his home country of ____ seeking a degree as an agricultural engineer. He did not complete the degree due to the deteriorating conditions specific to his asylum claim, but is capable of returning to college in the U.S. He has been unable to do so because of his immigration status.

Respondent has resided in the United States for more than six years and has created a positive life for himself. There is a crisis in the U.S. of an absence of fathers in their children’s lives, but Respondent has consistently indicated that he embraces his obligation to care and nurture his U.S. citizen children.

Respondent’s case presents both DHS and DOJ a compelling opportunity to comply with the Obama Administration’s immigration policy focusing on high priority cases and close or defer Respondent’s low priority removal proceedings. If a negative prosecutorial discretion decision is imminent due to a lack of evidence provided, we request the opportunity to cure any deficiency in the evidence on file.

For all reasons stated supra, we ask that your Office exercise prosecutorial discretion in this case and either join in Respondent’s Motion to Terminate Removal Proceedings, or exercise prosecutorial discretion and agree to defer Removal Proceedings for a later date until proper guidance or regulations are implemented concerning President Obama’s new immigration policy.



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