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Prosecutorial discretion in immigration cases

California residents are likely familiar with the legal doctrine of prosecutorial discretion. Authorities simply do not have the resources to prosecute all of the cases brought before them to the fullest extent of the law, and those considered less of a threat to society or the United States may sometimes find their cases delayed or dropped altogether. The concept of prosecutorial discretion forms the basis of some immigration policies, but its use in visa, asylum and green card cases was not widely known before John Lennon's brush with the federal government in the 1970s.

Lennon found himself in trouble after failing to leave the United States when his tourist visa expired in 1972, but his immigration attorney was able to have the stay extended for an additional month. Lennon wanted to remain in the country indefinitely, but his application for a green card was denied largely due to his vocal opposition to the ongoing war in Vietnam and the Nixon administration's handling of the conflict.

Lennon's attorney says that he filed a federal freedom of information request after hearing rumors that immigration authorities had a secret program in place to determine which cases would be prosecuted vigorously and which would be pushed to the back of the line because of humanitarian or political concerns. The request brought prosecutorial discretion in immigration cases out of the shadows and into the light, and it also led to John Lennon being granted a green card in 1976.

Experienced immigration attorneys may understand that discretion can sometimes play a role even when the rules and regulations being implemented appear highly rigid. The dream of beginning a new life in the United States is shared by millions of people around the world, and attorneys with knowledge of the myriad immigration programs available may assist those hoping to settle in America by helping to ensure that their application paperwork paints their situation in the best light possible.

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