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Prosecutorial discretion can stop a deportation

People in California who are targeted for deportation are sometimes allowed to remain in the country. Immigration and Customs Enforcement officials may choose to exercise prosecutorial discretion when the removal of an immigrant is not a high priority. Like deferred action, prosecutorial discretion will stop the deportation process.

Undocumented immigrants who have criminal records are usually not granted prosecutorial discretion. Instead, it is generally reserved for immigrants who have overstayed or entered the country without inspection. An immigrant who failed to obey a deportation order in the past probably will be unable to qualify for prosecutorial discretion.

An immigrant who is granted prosecutorial discretion is not automatically given a work authorization. However, a work authorization can be requested by filing Form I-765 and paying the filing fee. The form should be accompanied by proof that the applicant has a strong need to continue working in the United States. Some information that could be helpful to include with Form I-765 may be proof that the applicant financially supports a U.S. citizen or permanent resident relative. Documents that could be used to prove this relationship may include birth certificates and affidavits from relatives.

Immigrants who are facing deportation may have a better chance of being granted prosecutorial discretion if they have representation from an attorney. Immigration counsel may be able to present evidence that the immigrant's family members would suffer a significant financial setback if the deportation were to be carried out. After prosecutorial discretion is granted, an attorney may be able to help an immigrant apply for an employment authorization for general work or specialty occupations.

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  • American Immigration Lawyers Association
  • State Bar of California | California Board of Legal Specialization
  • Avvo
  • Orange County Bar Association
  • Irvine Chamber