Complete Guide to Prosecutorial Discretion

Prosecutorial discretion refers to the authority of U.S. immigration agencies — including Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and the Department of Homeland Security (DHS) — to stop working on your immigration case.

This aspect of immigration law allows these agencies to dedicate their limited resources to high-priority cases by closing non-priority cases early on.

The immigration judge may administratively close your removal proceedings when prosecutorial discretion is offered to you. As a result, you will no longer be required to attend immigration hearings, are allowed to apply for a work permit (in certain circumstances), and you can move forward in life without the threat of removal or deportation.

In general, seeking prosecutorial discretion is a good option if you:

• Are currently in removal proceedings
• Do not have a strong case against you
• Do not have any available relief at this time (i.e., deportation defense or appeal)
• Are not a threat to the U.S.
• Have committed very few immigration violations
• Since the policies surrounding prosecutorial discretion vary depending on the current administration, it is important to first seek help from an experienced immigration lawyer to determine if your case may be eligible.

How is Prosecutorial Discretion Decided?

The president currently in office determines the policies for exercising prosecutorial discretion. Within the past few years, these policies have undergone significant change.

Under the Obama administration, high-priority cases were defined as people who are threats to public safety, border security, and national security (e.g., convicted felons, terrorists, and people who crossed the U.S. border unlawfully). If you did not fit this definition, prosecutorial discretion would likely be available to you.

Under the Trump administration, all persons living in the U.S. as unlawful immigrants were considered an enforcement priority, regardless of their circumstances.

Currently, the Biden administration is attempting to return to similar priorities as the Obama administration: threats to public safety, border security, and national security. In a February 2021 memo, these priorities were outlined with an additional clause stating that prior approval is required for any case outside those priorities.

An appeals court judge put this memo on hold because a federal judge protested that the priorities were too broad. In September 2021, another memo was issued. The pre-approval clause was removed, although the focus remained on public safety, border security, and national security threats. It also specifies low-priority cases as people who:

• Are of a young or advanced age
• Have spent a significant amount of time in the U.S.
• Provide or care for family in the U.S.
• Are currently in the military or other public service
• Have an immediate family member in the military or other public service
• Have a physical or mental condition requiring treatment or care
• Are involved in legal proceedings as a victim of a crime, witness, or party to the proceedings
• Have a mental condition that could have led to their criminal conduct
• May be eligible for immigration relief or humanitarian protection
• Have been rehabilitated after conviction of a crime, or the conviction has been expunged, vacated, or occurred a long time ago

Recently, the September 2021 memo faced a federal judge, who blocked portions of the memo. As current policies meet a lot of changes, it’s best to speak to an immigration lawyer to determine whether prosecutorial discretion is available to you.

What Is the Difference Between Administrative Closure and Termination?

Administrative closure removes your case from the immigration judge’s immediate to-do list. This means that you are still in removal proceedings, but the government will not pursue a deportation case against you. Termination or dismissal means you no longer have an immigration case in court.

Understanding the distinction between these two is necessary as the status of your case can affect your next steps. For example, in most cases, you cannot file for an adjustment of status with the USCIS if your case has been administratively closed. However, if your case was terminated, you can.

A qualified immigration attorney can help you distinguish between administrative closure and termination of removal proceedings. If your case was administratively closed, an attorney could assist you with rescheduling the case in immigration court, so you can be free to pursue newly available relief.

What Happens If I Become Eligible for Immigration Relief?

Administrative closure based on prosecutorial discretion can be a much-needed source of security. You will no longer face the threat of imminent deportation. As long as you remain a low enforcement priority, you can continue to keep your case closed.

When you become eligible for a new form of immigration relief (e.g., adjustment of status based on an approved petition), an experienced immigration attorney can help you reopen your case. This will involve filing a motion to recalendar your removal proceedings and pursuing your case before an immigration judge. In addition, under limited circumstances, an immigration attorney may be able to get proceedings terminated so that you can pursue your case with USCIS.

Next Steps

It can be difficult to navigate immigration law on your own and determine if you are eligible for prosecutorial discretion. So don’t hesitate to reach out to us at Reeves Immigration Law Group. We’ve been handling immigration cases for nearly 40 years and are always ready to provide precise and insightful legal counsel.