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The Supreme Court “Stays” the Prosecutorial Discretion of the Immigration Service

Believe it or not, the Immigration Customs and Enforcement agency (ICE) will occasionally consider using its discretion to help a person or family in very rare situations. One of the best examples of this, and one we have used dozens of times since 1978, involves a family (it is almost always a family) which is statutorily eligible for permanent residence from an Immigration Judge. 

However, to apply for this relief from the Immigration Judge, our client must be placed in removal proceedings.  This is obviously risky but often it is the only option. The problem is that ICE must use its discretion to place the family in removal proceedings, and if that discretion is not allowed, the family cannot file for relief from the Immigration Judge.

A Federal Judge (in Texas!) ruled last year that ICE does not have this type of discretion, or if it does, it cannot use it. This decision was appealed and on July 21, 2022 the Supreme Court upheld this decision at least until December 2022, if not much longer. For now, we will have to wait and see how ICE will react to this; who knows they might still use their discretion even though currently they cannot be forced to.

Provided by:

David Swaim, Managing Partner
David Swaim & Associates, P.C.