As an attorney and educator, one of my favorite activities is providing community education about the laws that govern our lives and their developments. I practice civil and immigration law, and in the past two weeks I have been bombarded with many calls from immigrants all over the country asking me how the “new” immigration “law” will help them or affect their cases.
I’ve quoted the words new and law because the memo issued by Secretary Napolitano from Department of Homeland Security is not really a “new law”. It is a legal tool called prosecutorial discretion. Prosecutorial discretion is defined as “the authority of an agency or officer to decide what charges to bring and how to prosecute each individual in civil, administrative, and criminal cases.”
In immigration cases, prosecutorial discretion could be exercised at any level during the pendency of the case. For example, it can be exercised when issuing a notice to appear before an immigration judge; during removal proceedings; during the enforcement stage of a particular case; during the arrest of a particular person; during the execution of a removal order, etc.
Prosecutorial discretion may be requested during the trial stage, but immigration judges cannot grant it because they do not exercise prosecutorial discretion. Judges decide cases but they do not prosecute cases. The only agencies that can exercise prosecutorial discretion in immigration cases are Immigration and Customs Enforcement, United States Citizenship and Immigration Services, and Customs Border Protection because they have been assigned those duties by law.
One of the main concerns with this legal development is that unscrupulous individuals will start promising employment authorization cards or legal status to vulnerable people. People who are not presently in removal/deportation proceedings cannot request prosecutorial discretion. Remember, it is a legal tool that experienced immigration attorneys need to review with their clients on a case-by-case basis and request appropriately when it is applicable. Because of this, it is very rarely recommended that a person turn himself/herself into immigration. In the majority of cases this course of action will only lead to deportation.
It is necessary to note that only licensed immigration attorneys or the defendant himself/herself can apply for immigration remedies affirmatively or defensively. If a person assists another individual with their immigration forms or process, he/she is practicing law without a license and violating laws.
Therefore, be cautious if someone approaches you with false promises of legal status or asking you for money in exchange for help with the “new” immigration “law.” You have the right to see their attorney license and review their ethical and professional records. If the person is not an attorney (such as Notarios), you are in the right to file a complaint with the police to avoid being the next victim of an immigration scam.
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