Prosecutorial Discretion for Father of Child with Cerebral Palsy Despite Alcohol Related Convictions


Prosecutorial Discretion is the power that immigration officials have to decide how to enforce the law against a person. In the context of Immigration Court, the Office of the Chief Counsel has the authority to administratively close removal proceedings in cases where favorable discretion is warranted. When deciding whether or not to exercise prosecutorial discretion, immigration officers look at a wide range of discretionary factors, including but not limited to, the person’s length of presence in the U.S., whether person has a U.S. citizen or permanent resident spouse, child, or parent, the person’s criminal history, whether the person is the primary caretaker of seriously ill relative, and national security and safety concerns.

In our experience, the Office of the Chief Counsel rarely grants prosecutorial discretion to individuals with even one DWI conviction. However, there are extreme cases where prosecutorial discretion will be granted in spite of a DWI conviction.

For example, our firm represented a man who was placed into removal proceedings after being arrested for a probation violation, Driving While License Revoked. This revocation stemmed from a DWI conviction, his second conviction since 2005. In 2002, he was also convicted of driving after consuming alcohol while under 21 years of age.

My client is a family-oriented man who has lived in the U.S. for over fifteen years and has worked hard to provide for his wife and four young U.S. citizen children. Aside from his traffic convictions, he has maintained a clean criminal record in the many years he has lived in the U.S.

While speaking with the government attorney about the possibility of prosecutorial discretion, I emphasized the fact that my client’s thirteen year old son suffers from an array of substantial medical problems. His son has cerebral palsy and was classified as disabled by the NC Department of Health and Human Services. This child’s medical issues began at birth when his head was damaged, causing weakness to the left side of his body. He spent the first two months of his life in a hospital and was placed on a ventilator to breathe. He has significant developmental delays, speech delays, and learning disabilities, which require him to attend special education classes and receive physical therapy, as well as speech therapy. I also focused attention on the fact that my client is the sole financial provider for his family and that his son could not receive the medical and educational services he requires if his father were removed from the U.S. and their family was forced to relocate to Mexico.

Given the extreme nature of my client’s son’s illness, he was ultimately granted prosecutorial discretion and his removal proceedings were administratively closed, despite having several alcohol related convictions. He now has a work permit and is able to remain in the U.S. to care for his wife and children.

H. Esteban Diaz is an immigration attorney at the North Carolina offices of Fayad Law, P.C. Contact the firm to discuss your case and legal options.

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