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Verified Google ReviewBoard-certified Florida immigration attorney pursuing prosecutorial discretion (PD), administrative closure, joint motions, and stipulated remands in removal proceedings before the Orlando, Miami, and Krome Immigration Courts. Bilingual EN / ES.
Prosecutorial discretion (PD) is the authority of the Department of Homeland Security to decide which immigration enforcement actions to pursue, which to defer, and which to close. PD authority is inherent in federal enforcement powers and has been recognized as part of immigration enforcement since the earliest days of federal immigration law. The Supreme Court's decision in Heckler v. Chaney (1985) and the Court's decisions on executive enforcement authority generally confirm that prosecutorial discretion is broad and largely unreviewable by courts.
For respondents in immigration court, PD is a strategic option that does not provide immigration status but does provide a way to resolve the enforcement case favorably when substantive relief is unavailable or insufficient. PD requests can produce administrative closure of the case, dismissal, joint motions to terminate, stipulated remands to USCIS for benefit adjudication, or other procedural resolutions. PD is most powerful as a backup option pursued alongside substantive relief, providing a path to favorable resolution even if the substantive relief is denied.
PD in immigration court can take several procedural forms:
PD requests succeed when the case presents compelling equities. The factors are set by the operative DHS prosecutorial discretion memorandum, which has changed over time across administrations. The major factors typically considered include:
Prosecutorial discretion gives DHS the authority to decide which immigration enforcement actions to pursue and which to defer or close. PD has been used administratively since the earliest days of immigration enforcement and has been reaffirmed by every administration in some form. For respondents in removal proceedings who do not qualify for traditional relief, PD can provide administrative closure, dismissal, joint motions, or other favorable outcomes when the case has compelling equities.
DHS counsel evaluating PD requests look for the same four legal levers in every case:
PD requests succeed when the case presents compelling equities: length of presence in the U.S., U.S. citizen or LPR family ties, employment history, community contributions, military service connections, medical conditions, and the absence of significant negative factors. The PD request is essentially a moral argument grounded in the facts.
PD can take several procedural forms: administrative closure (paused proceedings), joint motion to dismiss, joint motion to terminate, stipulated remand to USCIS for benefit adjudication, motion to reopen and terminate, and others. The right vehicle depends on the case posture.
PD authority is exercised under DHS prosecutorial discretion memoranda that change with administrations. The current operative memoranda set the framework for what factors DHS will consider and what cases it will prioritize for or against enforcement.
PD is often pursued alongside applications for substantive relief in case the relief is denied. A respondent who applies for cancellation of removal can also request PD as a backup. PD allows the case to be resolved favorably even when substantive relief is unavailable.
Vests the Secretary of Homeland Security with broad authority over the administration and enforcement of the immigration laws. This authority includes the discretion to decide which enforcement actions to pursue, which to defer, and which to close. Prosecutorial discretion has been recognized as inherent in this enforcement authority since the earliest days of federal immigration enforcement.
DHS exercises prosecutorial discretion through internal policy memoranda that change with administrations. Major memoranda have included the Morton Memos (2010-2011), the November 2014 Johnson Memos, the February 2017 Kelly Memos, the September 2021 Mayorkas Memo, and subsequent updates. Each memo establishes priorities for enforcement and factors for considering PD requests. The currently operative memorandum frames how PD requests are evaluated.
Matter of Avetisyan (BIA 2012) and subsequent decisions including Matter of W-Y-U- have refined the standards for administrative closure of immigration court cases. The closure standard considers a range of factors including the likelihood of the respondent succeeding on a pending application, the procedural posture of the case, the prospect of an alternative resolution, and the views of both parties. Administrative closure is the most common procedural form of PD in immigration court.
PD authority itself is inherent in DHS enforcement powers and does not change with administrations, but the policy framework for exercising PD changes substantially. Major PD memoranda have included:
We track current policy and frame each PD request to fit the currently operative framework. The strength of a PD request depends substantially on how well it aligns with the priorities and factors the current administration has identified.
PD is most powerful when pursued strategically alongside applications for substantive relief. A respondent who applies for cancellation of removal can also request PD as a backup. A respondent pursuing asylum can request PD if the asylum case appears uncertain. This dual-track approach ensures that the case has multiple favorable resolution paths. If the substantive relief is denied, the PD path can still produce administrative closure or dismissal. If the substantive relief is granted, the PD request is mooted but no harm is done.
PD has important limitations that respondents should understand:
PD denials trace back to several patterns. Insufficient equities in the case. Significant negative factors (criminal history, immigration fraud, prior removal orders) that outweigh favorable factors. PD requests that do not fit the current policy framework. And PD requests submitted at procedurally inopportune times. Each of these is addressable with comprehensive case preparation and strategic timing.
Prosecutorial discretion is a real tool in removal defense, but it requires precise framing. The equities have to be documented thoroughly, the request has to fit the current policy framework, and the timing has to align with the procedural posture of the case. The right approach can produce favorable resolution when substantive relief alone is insufficient.
Start your prosecutorial discretion pre-evaluation today. We will assess the equities, the current policy framework, and the strongest path to favorable resolution.
Every PD case is different. The right strategy depends on the equities, the procedural posture, and the current DHS policy framework. Contact Ilabaca Law for a free, confidential pre-evaluation.
Prosecutorial discretion (PD) is the authority of DHS to decide which immigration enforcement actions to pursue, which to defer, and which to close. PD operates throughout immigration enforcement: at the border, in the interior, and in immigration court. In immigration court, PD requests typically ask DHS counsel to administratively close the case, dismiss the proceedings, join in a motion to terminate, or stipulate to a remand to USCIS for adjudication of a benefit application. PD does not produce a grant of immigration status; it produces an administrative resolution of the enforcement case.
Substantive forms of relief (asylum, cancellation of removal, adjustment of status, withholding, CAT) are statutory or regulatory remedies that the immigration judge can grant if the legal standards are met. PD is a discretionary administrative decision by DHS, not a judicial grant of relief. PD does not give the respondent immigration status; it pauses, closes, or dismisses the enforcement case while leaving the underlying immigration status unchanged. PD is often used as a backup when substantive relief is unavailable or as a way to resolve cases more efficiently.
Administrative closure is a procedural action by the immigration court that pauses removal proceedings without a final decision. The case remains pending administratively but is removed from the immigration court's active docket. The case can be reopened later if circumstances change or if either party requests it. Administrative closure is the most common procedural form of PD in immigration court and has been used extensively when respondents have alternative immigration paths pending (USCIS applications, family petitions, or other relief).
A joint motion to terminate is filed jointly by DHS counsel and the respondent's attorney asking the immigration judge to terminate removal proceedings. Joint motions are typically filed when both parties agree the case should not continue, often because the respondent has an alternative immigration path (USCIS benefit application, family petition, employment authorization) that makes continued removal proceedings inappropriate. Joint motions are routinely granted by immigration judges when both parties agree.
The factors are set by the operative DHS prosecutorial discretion memorandum and typically include: length of presence in the U.S.; U.S. citizen or LPR family ties (spouse, parents, children); employment history and tax compliance; community contributions and ties; educational attainment; military service connections; medical conditions of the respondent or family members; caregiving responsibilities; victimization in the U.S. (crime, abuse, exploitation); pending immigration applications; and the absence of significant negative factors (criminal history, prior immigration violations, fraud).
La discreción procesal (PD) es la autoridad del Departamento de Seguridad Nacional (DHS) para decidir qué acciones de cumplimiento migratorio buscar, cuáles diferir, y cuáles cerrar. En la corte de inmigración, las solicitudes de PD típicamente piden al abogado del DHS que cierre administrativamente el caso, que despida los procedimientos, o que se una a una moción para terminar. La PD no produce estatus migratorio; produce una resolución administrativa del caso de cumplimiento mientras el estatus subyacente queda igual.
Yes, significantly. PD authority itself is inherent in DHS's enforcement powers and does not change, but the policy framework for exercising PD changes substantially with administrations. The Obama administration issued the Morton Memos (2010-2011) and Johnson Memos (2014) establishing priority frameworks. The first Trump administration in 2017 issued enforcement memoranda that limited PD significantly. The Biden administration issued the Mayorkas Memo in September 2021 reestablishing priority categories. The current operative memoranda frame how PD requests are evaluated today. We track current policy and frame each request accordingly.
It depends on the criminal record and the current PD framework. Some criminal categories (aggravated felonies, certain violent crimes, gang-related offenses) typically disqualify respondents from favorable PD. Other criminal records can be overcome with strong equities and time elapsed since the offense. Each PD request involving criminal history requires careful analysis of the specific record, the time elapsed, the rehabilitation evidence, and the current DHS framework. We assess each case individually.
DHS denial of a PD request is generally not appealable. The discretionary nature of PD means that DHS counsel decides whether to exercise discretion, and the immigration court cannot order DHS to do so. However, denied PD requests can be renewed later as circumstances change, and the underlying removal case continues to proceed through the immigration court framework with all available substantive relief still on the table. A denied PD request does not foreclose any other defense.
Often yes, particularly for administratively closed cases. Either DHS or the respondent can move to recalendar (reopen) an administratively closed case if circumstances change. Common triggers for recalendaring include the respondent receiving an alternative immigration benefit that does not need immigration court adjudication (which terminates the case), or conversely a change in circumstances or policy that brings the case back to court. Recalendar motions are decided by the immigration judge under standards similar to motion-to-reopen practice.
It depends on the underlying immigration status. Administrative closure does not by itself confer work authorization. The respondent's work authorization depends on whether they have an independent basis for an EAD (pending I-485 adjustment, pending I-589 asylum past the 150-day clock, DACA, TPS, parole status, or other categories). Many respondents with administratively closed cases pursue work authorization through one of these independent paths.
Ilabaca Law charges a flat attorney fee for PD representation, scoped to the work required. PD requests involve case analysis, documentation of equities, drafting of the request itself, communication with DHS counsel, and procedural follow-through in immigration court. Fees depend on whether PD is pursued alongside other substantive relief or as a standalone strategy, and on the complexity of the equities documentation. The free pre-evaluation maps the scope before any retainer.
PD requests, administrative closure motions, and joint motions at the Orlando, Miami, and Krome Immigration Courts.
Prosecutorial discretion is a real tool in removal defense. For respondents with compelling equities who do not qualify for traditional relief, PD can produce administrative closure, dismissal, joint motions, or other favorable outcomes. A board-certified Florida prosecutorial discretion lawyer can review your case today.