U.S. Law Center

Prosecutorial discretion explained

The threat of deportation is real if you are an immigrant who has not been able to secure the proper documentation to remain in California or elsewhere in the United States. Officials from the Department of Homeland Security and other federal agencies may be involved in apprehension, deportation proceedings and other immigration issues that may lead to your removal from the country. At the U.S. Law Center, we have answered the questions of many immigrants regarding prosecutorial discretion and when an immigrant may be allowed to remain in the United States.

According to a DHS memorandum, certain categories of undocumented immigrants have higher priority for removal. These include those who do not qualify for relief such as asylum and have committed felonies, multiple or serious misdemeanors, or who may be a threat to national security. However, immigration officials have the authority, or prosecutorial discretion, to assess the circumstances of those who do not fit these categories, and may determine that their detainment or removal is not a priority. This decision does not change a person’s status.

An undocumented immigrant in the United States with serious health issues, or with children or other family ties, may not be a priority for removal. Officials from Customs and Border Protection, Immigration and Customs Enforcement or other DHS agencies may also make this determination for someone who is involved in a court case or has served in the military. How long a foreign national has lived in the country may also be a factor. For more information about deportation cases, please visit our web page.

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