Edward J. Cuccia, Esq. on "prosecutorial discretion"
Edward J. Cuccia, Esq.
August 19, 2011
When Barack Obama was elected President, I, Edward J. Cuccia, an immigration lawyer for the past twenty one years, along with many of you, believed that compassion, fairness, and justice would once again be a part of our immigration system. For the past two and a half years, we have had little to cheer about. Virtually no new law or proposal has been implemented to provide any pathway to a Green Card or Citizenship. Lately, with Congress a mess and Republicans and Democrats fighting like children, many of us have given up hope.
Finally, on August 18, 2011, the Obama Administration has given us new reason to hope. On August 18, 2011, the President put forth a new proposal whereby the Department of Homeland Security will begin review of all 300,000 pending deportation cases in Immigration Courts to determine which individuals will be considered for “prosecutorial discretion.”
“Prosecutorial discretion” is a wonderful tool that allows deserving people to cancel deportation, obtain work authorization, and then perhaps the fabled “Green Card.”
How does it work? To obtain “prosecutorial discretion” a person must demonstrate that he or she deserves special or humanitarian consideration, usually involving cases with minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services and individuals with serious disabilities or health problems. Persons with presently pending removal cases could have their cases closed and thereafter those persons will be able to apply for immigration benefits, including work authorization and perhaps residency. Others could seek prosecutorial discretion to obtain a favorable grant of cancellation of removal (the 10 years case) or adjustment of status. Others could seek to have old orders of deportation or removal reopened and re-calendared.
What kind of special or humanitarian consideration or hardship would be considered?
The following are examples:
● A person's length of time in the United States and the circumstances of that person's arrival in the United States, especially if that person came to the United States under the age of 21;
● A person's pursuit of education in the United States, especially U.S. high school or college graduates;
● Whether a person, or the person's immediate relatives, have served in the U.S. military, reserves, or national guard;
● A person's ties and contributions to the community, including family relationships and memberships in community groups such as associations;
● The conditions in a person's home country;
● A person's age, with particular consideration given to minors and the elderly;
● Whether that person has a U.S. citizen or permanent resident spouse, child, or parent;
● Whether that person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
● Whether that person or that person's spouse is pregnant or nursing;
● Whether that person or that person's spouse suffers from severe mental or physical illness;
● Whether that person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident or as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime.
Unfortunately, a negative or bad history will count against you. If you have a criminal history or a really negative immigration history you could be denied prosecutorial discretion.
August 19, 2011
When Barack Obama was elected President, I, Edward J. Cuccia, an immigration lawyer for the past twenty one years, along with many of you, believed that compassion, fairness, and justice would once again be a part of our immigration system. For the past two and a half years, we have had little to cheer about. Virtually no new law or proposal has been implemented to provide any pathway to a Green Card or Citizenship. Lately, with Congress a mess and Republicans and Democrats fighting like children, many of us have given up hope.
Finally, on August 18, 2011, the Obama Administration has given us new reason to hope. On August 18, 2011, the President put forth a new proposal whereby the Department of Homeland Security will begin review of all 300,000 pending deportation cases in Immigration Courts to determine which individuals will be considered for “prosecutorial discretion.”
“Prosecutorial discretion” is a wonderful tool that allows deserving people to cancel deportation, obtain work authorization, and then perhaps the fabled “Green Card.”
How does it work? To obtain “prosecutorial discretion” a person must demonstrate that he or she deserves special or humanitarian consideration, usually involving cases with minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services and individuals with serious disabilities or health problems. Persons with presently pending removal cases could have their cases closed and thereafter those persons will be able to apply for immigration benefits, including work authorization and perhaps residency. Others could seek prosecutorial discretion to obtain a favorable grant of cancellation of removal (the 10 years case) or adjustment of status. Others could seek to have old orders of deportation or removal reopened and re-calendared.
What kind of special or humanitarian consideration or hardship would be considered?
The following are examples:
● A person's length of time in the United States and the circumstances of that person's arrival in the United States, especially if that person came to the United States under the age of 21;
● A person's pursuit of education in the United States, especially U.S. high school or college graduates;
● Whether a person, or the person's immediate relatives, have served in the U.S. military, reserves, or national guard;
● A person's ties and contributions to the community, including family relationships and memberships in community groups such as associations;
● The conditions in a person's home country;
● A person's age, with particular consideration given to minors and the elderly;
● Whether that person has a U.S. citizen or permanent resident spouse, child, or parent;
● Whether that person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative;
● Whether that person or that person's spouse is pregnant or nursing;
● Whether that person or that person's spouse suffers from severe mental or physical illness;
● Whether that person is likely to be granted temporary or permanent status or other relief from removal, including as a relative of a U.S. citizen or permanent resident or as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime.
Unfortunately, a negative or bad history will count against you. If you have a criminal history or a really negative immigration history you could be denied prosecutorial discretion.