Prosecutorial Discretion in Immigration Court: What It Is and Where It Stands Now

Prosecutorial discretion is the government's power to decide whether, and how far, to pursue a deportation case. In immigration court, that power belongs to the Department of Homeland Security (DHS) and its lawyers, not to the judge. It can mean a case is dismissed, paused, or never filed at all. But it is entirely the government's choice. No one can demand it, and no lawyer can promise it.

This guide explains what prosecutorial discretion is, who uses it, the forms it takes in immigration court, and where official policy stands as of October 6, 2026. The policy picture changed sharply in 2025, and much of what was written about this topic between 2021 and 2024 no longer describes how the government says it operates. This is general information, not legal advice.

Who exercises prosecutorial discretion

In removal proceedings, DHS is the party that brings the case. Its trial lawyers work for the Office of the Principal Legal Advisor (OPLA) at U.S. Immigration and Customs Enforcement (ICE). According to ICE (opens in new tab), OPLA serves by statute as the exclusive representative of DHS in removal proceedings before the Executive Office for Immigration Review (EOIR), the agency that runs the immigration courts.

EOIR's own leadership has drawn a firm line here. In Policy Memorandum 25-09 (opens in new tab) (January 29, 2025), EOIR's Acting Director wrote that DHS, not EOIR, exercises prosecutorial functions, and that DHS is the only agency for which it is appropriate to decide whether a case warrants prosecutorial discretion. The same memo cites a 1980 Board of Immigration Appeals decision, Matter of Ramirez-Sanchez, for the rule that the decision to start proceedings is a prosecutorial choice that judges do not review.

The forms it can take

Prosecutorial discretion is not one single program. It shows up in several ways, each tied to a specific rule.

Not filing, or canceling, a Notice to Appear

A case begins when DHS files a Notice to Appear with the court. Before the court has jurisdiction, an authorized officer may cancel the notice on grounds listed in 8 CFR 239.2(a) (opens in new tab). These include that the notice was "improvidently issued" or that circumstances have changed so much that continuing is "no longer in the best interest of the government."

A DHS motion to dismiss

Once the case is in court, DHS lawyers may move to dismiss on those same grounds. Under 8 CFR 1239.2(c) (opens in new tab), a dismissal is without prejudice to either side. That means DHS can, in principle, start a new case later. A motion to dismiss for any other reason is treated as a motion to terminate.

Joining or not opposing a motion to terminate

Termination ends the case. Under 8 CFR 1003.18(d) (opens in new tab), when both parties file a motion to terminate jointly, or one files and the other "affirmatively indicated its non-opposition," the judge must grant it unless the judge gives "unusual, clearly identified, and supported reasons" to deny it. The same rule says judges may not terminate a case for purely humanitarian reasons unless DHS consents, joins the motion, or affirmatively states it does not oppose. DHS's position can therefore decide whether that door is open at all.

Administrative closure

Administrative closure is, in the rule's words, "the temporary suspension of a case." It takes the case off the court's active calendar until a party asks to put it back. Under 8 CFR 1003.18(c), a joint or unopposed motion to close must be granted unless the judge gives the same kind of unusual, supported reasons. A judge may also close a case over one side's objection after weighing the listed factors. The Board of Immigration Appeals has parallel authority in 8 CFR 1003.1(l) (opens in new tab), and termination authority in 8 CFR 1003.1(m).

Other agreements

DHS lawyers may also agree with the other side on narrower points during a case, such as which issues are contested. Like everything above, that is a choice the government makes case by case.

Where policy stands as of October 2026

The 2021 enforcement priorities are gone. On January 20, 2025, the President signed Executive Order 14159 (opens in new tab), "Protecting the American People Against Invasion" (90 FR 8443). Section 3 revoked Executive Order 13993, the 2021 order on civil immigration enforcement priorities, and directed agencies to promptly revoke memoranda and guidance based on it. Section 2 states a policy of faithfully executing the immigration laws "against all inadmissible and removable aliens." DHS's 2021 announcement of the Mayorkas enforcement guidelines now sits in the DHS archive (opens in new tab), which DHS says may not reflect current policy.

The 2022 OPLA guidance rested on those priorities. ICE OPLA's April 3, 2022 memo to its attorneys (often called the Doyle memo) says on its first page (opens in new tab) that it was issued to carry out the Mayorkas guidelines. In PM 25-09, EOIR stated that the executive order behind its own 2021 policy had been revoked and that DHS "has canceled the memoranda which were the foundation" of that policy.

EOIR no longer prompts DHS about discretion. PM 25-09 canceled EOIR's 2021 Policy Memorandum 21-25, which had encouraged judges and the Board to ask DHS whether it would exercise discretion. EOIR now leaves that entirely to DHS.

Administrative closure: memo canceled, rule still in force. In Policy Memorandum 25-29 (opens in new tab) (April 18, 2025), EOIR canceled Director's Memorandum 22-03 on administrative closure and sharply criticized the practice. But the same memo says the 2024 rule that wrote closure and termination standards into the regulations, Efficient Case and Docket Management in Immigration Proceedings (opens in new tab) (89 FR 46742), remains binding on judges until it is rescinded, superseded, enjoined, vacated, or found unlawful. As of this writing, the current eCFR text of 8 CFR 1003.18 still carries those standards. A February 2026 Board appeals rule (opens in new tab) changed only terminology in that section.

The practical result: the legal tools for dismissal, termination, and closure still exist, but whether DHS agrees to use them is up to DHS, and the official policy direction since January 2025 favors enforcement.

What this means if you are in court

• Do not count on it. Prosecutorial discretion is a favor the government may extend, not a right. A request can be ignored or refused without explanation.
• Prepare your defense anyway. Any request for discretion should sit alongside a full defense, such as applications for relief like cancellation of removal. Missing a deadline while waiting on DHS can be costly.
• Know what each outcome means. A dismissal is without prejudice. An administratively closed case can be recalendared. Neither one by itself grants legal status.
• Check the date of what you read. Guidance from 2021 to 2024 often describes policies that have since been revoked.

Carlos Maury Law is a national firm led by a former U.S. Immigration Judge. Carlos Maury no longer sits on the bench, and the firm has no influence over any judge, ICE attorney, or pending case. What we offer is careful analysis of your options under the current rules.

Frequently Asked Questions

What is prosecutorial discretion in immigration court?

It is the government's power to decide whether and how to pursue a removal case. In immigration court it belongs to DHS, whose ICE OPLA attorneys may agree to dismiss, terminate, or administratively close a case, or may decline. It cannot be demanded.

Can an immigration judge order ICE to exercise prosecutorial discretion?

No. EOIR's Policy Memorandum 25-09 states that DHS, not EOIR, exercises prosecutorial functions. A judge decides motions under the regulations, but cannot require DHS to dismiss or to agree.

Is administrative closure still available in 2026?

The regulation is still in effect. Under 8 CFR 1003.18(c), as published in the eCFR, judges may administratively close cases on a party's motion, and must grant joint or unopposed motions absent unusual, supported reasons. EOIR canceled its 2021 guidance memo on closure in April 2025.

Are the 2021 Mayorkas enforcement priorities still in effect?

No. Executive Order 14159 of January 20, 2025 revoked the 2021 order behind them and directed agencies to revoke related guidance. DHS's 2021 announcement is now in its archive.

Talk to a lawyer about your case

Whether any form of prosecutorial discretion is realistic in your case depends on your history, your charges, and the relief you may qualify for. To talk about your situation, call (213) 769-0050. Hablamos Español.

This article is general information only and is not legal advice. Reading it does not create an attorney–client relationship. Immigration law is complex and fact-specific; consult a qualified immigration attorney about your situation. Prior results do not guarantee a similar outcome. Attorney advertising.

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