Practice areas
Prosecutorial discretion: asking ICE to set your case aside
Dismissal or administrative closure of removal cases that are not enforcement priorities.
Consultations by phone, Zoom or WhatsApp, in English, Spanish or Portuguese.
Short answer
Prosecutorial discretion is a request that ICE attorneys drop or pause a removal case that is not an enforcement priority. It does not give status by itself, but a dismissal often unlocks a green card application with USCIS that could not be filed while the case was in court.
Get a removal case closed so you can pursue a green card.
What is a prosecutorial discretion (PD) request?
Prosecutorial discretion (PD) is a key tool in U.S. immigration law that allows immigration authorities, such as Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and Customs and Border Protection (CBP), to exercise discretion in deportation cases. Essentially, these agencies can deprioritize or stop pursuing certain deportation cases, especially those considered "low priority." In some instances, PD can also mean not issuing a Notice to Appear (NTA) in immigration court when an NTA would typically be issued.
Who can get PD?
Anyone in the U.S. without lawful immigration status can request prosecutorial discretion. Still, the decision often depends on positive factors like strong family ties, stable employment, community involvement, or caregiving for relatives with serious medical issues. These factors show that the person contributes to their community and should not be a deportation priority.
However, those with serious criminal records may face challenges in receiving PD. ICE will require a background check, so it's crucial to consult an immigration attorney if you have a criminal history. They can assess your case, determine if PD is a good option, and explore alternatives like appealing or defending against deportation. In some cases, working with a criminal defense attorney to clean up your record can improve your chances for a successful PD request or strengthen your case in court.
What are the benefits of being granted prosecutorial discretion?
While prosecutorial discretion can provide relief, it's not always the best solution for every immigration case. PD may temporarily close your immigration case, which could prevent deportation for a time. However, it does not always lead to lawful status, permanent residency, or other immigration benefits. In some cases, it may be better to fight removal in court, file an appeal, or pursue other immigration relief options, such as asylum or cancellation of removal.
Determining the best path can be complex, and deciding whether to pursue a PD request or take another course of action depends on the specific details of your case. Before making any decisions, it's always wise to consult a qualified immigration attorney who can help you explore all available options and guide you toward the best strategy for your situation.
How willing has the U.S. Government been to grant prosecutorial discretion in recent years?
The likelihood of a successful prosecutorial discretion request often depends on the current political climate and the administration's immigration enforcement priorities.
Under the Trump administration, ICE was instructed to pursue deportation aggressively, with few exceptions. This meant that prosecutorial discretion was rarely granted, as nearly all undocumented individuals became enforcement priorities.
However, under the Biden administration, the U.S. government has reintroduced a focus on prosecuting individuals who pose significant risks to national security or public safety. In a 2021 memo issued by Homeland Security Secretary Alejandro Mayorkas, enforcement priorities shifted back to high-risk individuals, with a renewed openness to prosecutorial discretion for low-priority cases. Factors like long-standing U.S. residency, age, mental or physical health, and family ties are now considered when evaluating PD requests. Additionally, these guidelines make people with rehabilitated criminal histories or vacated convictions less likely to be deported.
ICE's Office of the Principal Legal Advisor (OPLA) handles prosecutorial discretion decisions, and internal guidance continues to evolve. For the latest policy updates and case evaluations, it's essential to work with an experienced immigration attorney.
Need help with your PD request? Contact 360 immigration law today!
At 360 Immigration Law Group, we understand the complexities of prosecutorial discretion and how it can impact your immigration case. Our dedicated team is here to provide compassionate, knowledgeable support to help you navigate the process. We proudly serve clients in English, Spanish, and Portuguese, assisting individuals across the U.S., its territories, and internationally.
If you are considering a PD request or want to learn more about your immigration options, contact us today at 954.667.3660 to schedule a free case consultation. We're available by phone, Zoom, or WhatsApp to ensure that you receive the help you need wherever you are.
Who qualifies?
You are in removal proceedings
Or have a case that could be reopened and dismissed.
You are not an enforcement priority
No serious criminal record and no recent border entry.
You have equities
Long residence, U.S. citizen family, work history, medical needs or military service.
There is a benefit waiting
A pending or approvable petition is the strongest argument for dismissal.
Schedule a case evaluation
Tell us your situation. We will tell you honestly whether you have a case.
Schedule Free Case EvaluationWe reply within 1 business day, in English, Spanish or Portuguese.
Do you qualify? A four-question check
Do you qualify? A four-question check
Four questions. Nothing you answer is stored or sent to us.
What does the process look like?
Assemble the equities packet
2 to 4 weeks
Residence, family, work, taxes, medical records and letters.
Request discretion from the ICE attorney
Filing week
Filed with the supporting record.
Response and, where needed, a hearing
1 to 6 months
Some judges rule on dismissal in court.
File the underlying benefit
After dismissal
Once dismissed, the green card case can proceed with USCIS.
How long does it take?
Requests are typically answered within one to six months. Policy shifts with each administration, so we assess your odds against current practice rather than against how it worked a few years ago.
What does it cost?
Flat fee for the request.
The discretion request is quoted flat. If it succeeds and you then file for residence, that is a separate stage with its own quote.
Government filing fees are set by the agencies and are not part of our fee.
Frequently asked questions
No. It clears the court case so you can file for a benefit that does give status.
Contact
Tell us about your case
Send us the basics and we'll reply within one business day in English, Spanish or Portuguese.
- We reply within one business day, in English, Spanish or Portuguese.
- Consultations by phone, Zoom or WhatsApp.
- Attorney input is part of our case evaluation process from the start. The information you share is carefully reviewed with an attorney.
Take the Next Step Today
Whether you need help with a visa, a green card, or deportation defense, we're ready to help.
Reach out to our trusted immigration law attorneys in Coral Springs and South Florida.