Prosecutorial Discretion & ICE Enforcement Defense
Understanding ICE enforcement priorities, prosecutorial discretion factors, and defense strategies to protect against immigration enforcement actions.
Critical Legal Notice
If you are facing enforcement action, contact an immigration attorney immediately. Prosecutorial discretion requests require careful legal strategy and proper documentation. Time is often critical in enforcement cases.
What is Prosecutorial Discretion?
Prosecutorial discretion is the authority of immigration enforcement agencies to decide whether to pursue, continue, or cease enforcement actions against individuals. This includes decisions to initiate removal proceedings, detain individuals, or grant administrative closure of cases based on humanitarian factors and enforcement priorities.
Current Policy Framework
ICE enforcement priorities are established by DHS memos and guidelines. The most recent guidance emphasizes public safety threats while considering humanitarian factors and individual circumstances in enforcement decisions.
ICE Enforcement Priorities
Current Enforcement Priorities (2025)
- National security threats
- Border security violators
- Public safety threats
- Individuals with final removal orders issued on or after November 1, 2020
- Individuals who have engaged in activities that threaten public safety
- Individuals who have engaged in activities that threaten border security
- Recent unlawful border crossers
Non-Priority Cases
Individuals who do not fall within enforcement priorities may still face enforcement action, but ICE may exercise discretion to focus resources on priority cases. This creates opportunities for discretion requests in appropriate cases.
Discretionary Factors
Positive Discretionary Factors
- Length of presence in the United States
- Circumstances of arrival in the United States and manner of entry
- Pursuit of education in the United States
- Whether the person has a U.S. citizen or permanent resident spouse, child, or parent
- Whether the person is the primary caretaker of a person with a mental or physical disability
- Whether the person or the person's spouse is pregnant or nursing
- Whether the person has been battered or subjected to extreme cruelty
- Whether the person is experiencing severe mental or physical illness
- Whether the person has a serious disability or is elderly
- Whether removal would result in exceptional and extremely unusual hardship
- Whether the person poses a threat to national security, border security, or public safety
- Whether the person has a criminal history and the nature and recency of offenses
- Whether the person is present in or associated with a sensitive location
- Whether the person is known to be suffering from a serious mental illness
- Whether the person is the victim or witness of a crime
- Any other factors bearing on the totality of the circumstances
Strongest Positive Factors
- • U.S. citizen children or spouse
- • Serious medical conditions
- • Primary caretaker responsibilities
- • Long-term community ties
- • Military service or veteran status
Negative Factors
- • Criminal history
- • Immigration violations
- • Threat to public safety
- • Gang affiliation
- • Prior removal orders
Request Process
Prosecutorial Discretion Request Process
Case Assessment
Evaluate your case for positive discretionary factors and lack of negative factors
Document Preparation
Gather supporting evidence for all positive discretionary factors
Legal Representation
Obtain qualified immigration attorney representation for proper request submission
Request Submission
Submit formal prosecutorial discretion request to appropriate ICE office
Follow-up Communications
Maintain regular communication with ICE regarding request status
Decision Response
Respond appropriately to ICE decision and explore additional options if denied
Supporting Documentation
Required Supporting Documents
- Birth certificates of U.S. citizen children or family members
- Marriage certificates for U.S. citizen or permanent resident spouses
- Medical records documenting serious illness or disability
- Educational transcripts and graduation certificates
- Employment records and letters from employers
- Tax returns and evidence of tax compliance
- Community service records and volunteer work documentation
- Letters of support from community members, religious leaders, employers
- Evidence of ties to the United States
- Documentation of hardship that removal would cause to family members
- Evidence of rehabilitation from past criminal conduct
- Documentation of cooperation with law enforcement
- Proof of primary caretaker responsibilities
- Evidence of exceptional circumstances or humanitarian factors
Document Preparation Tips
- • Obtain certified copies of all official documents
- • Translate foreign documents with certified translations
- • Organize documents chronologically with clear cover sheets
- • Include detailed personal statement explaining circumstances
- • Obtain letters from multiple community sources
Sensitive Locations Policy
ICE generally avoids enforcement actions at sensitive locations unless there are exigent circumstances or the individual poses a threat to public safety.
Protected Sensitive Locations
- Schools and educational facilities
- Medical facilities and hospitals
- Places of worship and religious institutions
- Courthouses (with limited exceptions)
- Social services offices
- Shelters and crisis centers
- Disaster or emergency relief sites
- Demonstrations, marches, parades, and other public assemblies
- Funerals, weddings, and other religious or civil ceremonies
Limited Protection
Sensitive location policies provide limited protection and may not apply in cases involving national security threats or individuals with serious criminal histories. The policy also does not protect during transportation to or from these locations.
Defense Strategies
Proactive Strategies
- • File discretion requests before enforcement action
- • Maintain updated address with ICE
- • Document community ties and contributions
- • Address any criminal issues through rehabilitation
- • Establish strong family and community support
Emergency Response
- • Contact attorney immediately if detained
- • Do not sign any documents without counsel
- • Exercise right to remain silent
- • Request bond hearing if detained
- • File emergency discretion requests
Special Considerations
DACA Recipients
DACA recipients may have additional protections, but should still prepare discretion requests in case of program changes or individual case complications.
Victims of Crime
Crime victims may qualify for special protections and should immediately contact victim services and immigration attorneys to explore U visa, T visa, or VAWA protections.
Military Families
Military service members and their families receive special consideration in enforcement decisions and may qualify for expedited naturalization or other protections.
Legal Resources
Frequently Asked Questions
Can I request prosecutorial discretion if I have a criminal record?
Yes, but criminal history is a significant negative factor. Success depends on the nature and recency of offenses, evidence of rehabilitation, and strength of positive factors.
How long does it take to get a decision?
Processing times vary widely, from several weeks to many months. Emergency requests may receive faster consideration, especially in cases involving serious medical conditions or family separation.
What if my request is denied?
Denials can sometimes be appealed or reconsidered with additional evidence. Continue pursuing other forms of relief while maintaining compliance with any enforcement actions.
Do I need an attorney?
While not required, attorney representation significantly improves success rates. Immigration attorneys understand current policies, proper documentation, and strategic presentation of cases.
Emergency Contacts
If You Are Detained:
- • Contact family/attorney immediately
- • ICE Detainee Locator: 1-888-351-4024
- • Exercise right to remain silent
- • Do not sign any documents
Legal Help Hotlines:
- • ACLU Immigrants' Rights: 1-877-797-2254
- • RAICES: 1-888-674-6636
- • Legal Aid: 211 (dial 211)
- • Local Bar Association Referrals