La Migra

Prosecutorial Discretion

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What It Means for Immigrants

The U.S. Department of Homeland Security (DHS) has a long-standing tradition of granting prosecutorial discretion on a case-by-case basis. The purpose of asking for prosecutorial discretion (PD request) and limits on what DHS can grant through PD have changed over the years. Specifically, what immigration attorneys can request remains unlimited but how DHS uses PD can change among states, through presidential administrations, and even regional DHS supervisors.

Examples of possible PD requests include:

  • Stipulation to certain aspects of relief
  • Agreement to terminate/dismiss proceedings
  • Joint motion to reopen number or time-barred cases
  • Request for mediation on appellate review
  • Non-opposition to reopening prior order of removal

DHS will usually issue a memorandum governing PD requests setting forth how applicants can use PD in civil immigration enforcement. Under most of memos, DHS has answered it will focus on active immigration cases currently pending before the courts. Therefore, it can be harder to reopen a case where, for example, a client is seeking rescission of an old removal order to pursue relief with a different agency.

In practice, however, the agency’s response through trial attorneys depends on jurisdiction or the immigration court with authority over your case. This, in turn, can vary from state to state and even county to county. For these requests, attorneys often complain there is no recourse for trial attorneys who do not read PD requests prior to trial. Few are responsible enough to peruse even the most simple request. Others have been given discretion to outright refuse PD without reading the request. Still more previously used PD to institute administrative closure to pause an active case on busy dockets.

Be specific in what you are requesting and follow-up with the DHS duty attorney in your area through email and phone. Remember that DHS trial attorneys are also not keen on enforcing non-priority cases or those that do not pose a threat to national security. Very few immigrants are “priorities” because they are neither terrorists nor criminals. However, DHS may still be reluctant to dismiss a case where the respondent has a criminal record. Therefore, work with your attorney to present the most reasonable, narrowly-tailored request to meet your needs. You will be asked to provide evidence supporting your good moral character and ties to the United States.