Prosecutorial Discretion and “Tiers”

There is some discretion given to the DHS attorneys when it comes to the deportation process. If they look at the Notice To Appear and feel that there is really not a whole lot that they can do, they can dismiss the NTA using prosecutorial discretion. In effect, they are saying “We’re not going to really go after this person. Let’s just put him off to the side…we’ve got bigger fish to fry.” Then, through the use of PD, the person is taken out of the Immigration Court system.

If the Trial Attorneys don’t do that, it has to be an affirmative application from the applicant or the applicant’s attorney to ask the DHS attorney why this client is here and present the reasons for his presence, the positive factors on his side, and why he should be granted Prosecutorial Discretion in front of the IJ. Then, if the ICE attorneys agree, it is presented to the judge for approval.

“Tier 4” is just taken from a memo issued by the Office of the Chief Consul; the group that supervises all of the Trial Attorneys across the country, asking that each office prioritize those people who they are going after.

No one in court mentions what tier the person is in. Judges are never told that someone is a Tier 3 – the allegations against the person are what they are. Sometimes things will come up in court that will show that the person is a much less desirable citizen than they had initially appeared to be because, suddenly, the ICE attorney will present a number of criminal conviction documents. Generally, it is within the discretion of the IJ whether to allow someone to remain despite a criminal conviction.

On the other hand, sometimes someone is an aggravated felon, or they have committed domestic violence, for example, and there is no waiver for that level of criminal depravity. Under these circumstances, the judge has no choice but to order the person removed.

In Immigration Court, a lot of the legal arguments that take place aren’t that the alien is or isn’t convicted of a serious crime. The technical jousting that goes on between the lawyers is whether or not the crime that the person is convicted of, given the wording of the state statute, qualifies as an aggravated felony or as a crime involving moral turpitude. Those are the cases that the U.S Supreme Court has been deciding and weighing in on over the last 4 or 5 years.

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