Prosecutorial discretion is 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 decide whether to continue pursuing an immigration case.
In certain situations, these agencies may choose not to move forward with removal proceedings in order to focus their resources on higher-priority cases. When prosecutorial discretion is granted, a person may be allowed to remain in the United States without immediate risk of deportation.
The legal team at Behar International Counsel APC assists clients in requesting prosecutorial discretion and determining whether their case qualifies under current immigration enforcement policies.
Prosecutorial discretion allows immigration authorities to delay, suspend, or close a case when enforcement is not considered a priority.
When discretion is exercised, the immigration judge may administratively close the removal proceedings. This usually means:
you may no longer need to attend immigration court hearings
you may qualify for work authorization in certain cases
the government will not actively pursue deportation while the case remains closed
This option may be appropriate for individuals who:
are currently in removal proceedings
do not present a threat to public safety
have limited or no criminal history
have few immigration violations
do not currently qualify for other forms of relief
have strong family, community, or humanitarian ties to the United States
Because enforcement policies change depending on the administration, it is important to consult with an experienced immigration attorney before requesting prosecutorial discretion.
Immigration enforcement priorities are set by the federal government and may change over time.
In general, immigration authorities focus on cases involving:
threats to public safety
threats to national security
recent unlawful entry at the border
serious criminal offenses
Individuals who do not fall into these categories may be considered lower priority for enforcement.
Factors that may support a favorable exercise of discretion include:
long residence in the United States
strong family ties in the U.S.
military service or public service
caregiving responsibilities
medical or mental health conditions
involvement in legal proceedings as a victim or witness
rehabilitation after a past conviction
potential eligibility for immigration relief
Because policies and priorities change, each case must be reviewed individually.
At Behar International Counsel APC, we evaluate the facts of each case to determine whether requesting prosecutorial discretion is a viable strategy.
When prosecutorial discretion is granted, the court may either administratively close the case or terminate it. These outcomes are different.
Administrative closure means the case is removed from the court’s active calendar, but it is not fully dismissed.
The government may reopen the case in the future.
Termination means the case is dismissed and removal proceedings are no longer pending.
This distinction is important because your options may depend on the status of your case.
For example, in many situations, adjustment of status cannot be filed while a case is administratively closed, but it may be possible after termination.
An experienced immigration attorney can review your case and determine which option is best.
Administrative closure can provide temporary protection from deportation while you wait to qualify for another immigration benefit.
If you later become eligible for relief — such as adjustment of status, a waiver, or another form of protection — your case may need to be reopened in immigration court.
This may require filing a motion to recalendar the case so the judge can review the new application.
In some situations, it may also be possible to request termination of proceedings so the case can be handled by USCIS.
The attorneys at Behar International Counsel APC assist clients with reopening cases, requesting termination, and pursuing new forms of immigration relief.
Immigration law is complex, and determining whether prosecutorial discretion is available requires careful legal analysis.
Because enforcement policies change frequently, it is important to have qualified legal guidance before making any decision about your case.
The attorneys at Behar International Counsel APC have extensive experience handling deportation defense, administrative closure requests, and immigration appeals. We review each case individually and develop strategies designed to protect our clients and their families.
If you are in removal proceedings and want to know whether prosecutorial discretion may apply to your situation, contact Behar International Counsel APC to schedule a confidential consultation.
