Prosecutorial Discretion in Immigration Court

Prosecutorial discretion is the power of immigration officials to decide not to pursue removal against someone, or to pause it. Requests can be made to DHS or to the immigration judge in some situations, and whether one applies depends on the facts of each case. This page explains what it is, what it cannot do, and how AG Immigration Law P.A. handles a non-detained request. The right request follows from where the case stands, so the first review starts there.

What Prosecutorial Discretion Is and Who It Fits

Prosecutorial discretion is the authority to decide whether to enforce the law against someone. The USCIS Policy Manual describes it this way. The USCIS Policy Manual says there is no legal right to it unless a law or regulation provides one.

PD also can never justify action that is illegal.

This practice focuses on removal defense. The typical reader is a person who is not in custody and has a case pending in immigration court, such as in Miami or Orlando. A spouse, parent, or adult child may start this research after a Notice to Appear arrives. The person in proceedings is the respondent. A respondent may be represented by an attorney or another qualified representative (8 C.F.R. § 1240.3).

Types of PD Requests and Where They Are Filed

The main request types are cancellation or dismissal of a notice to appear, administrative closure, and deferred action where the rules allow it. Each one fits a different point in the case.

• Before the court has the case: An officer may cancel a notice to appear before jurisdiction vests with the immigration judge, but only when certain grounds are met. Those grounds include a notice that was improvidently issued and changed circumstances (8 C.F.R. § 239.2).
• After proceedings begin: Government counsel may move for dismissal on the same grounds. Dismissal is without prejudice to the person or to DHS (8 C.F.R. § 1239.2).
• Administrative closure: An immigration judge may administratively close a case on a party’s motion. A joint motion, or one the other side has affirmatively said it does not oppose, must be granted unless the judge gives unusual, clearly identified, and supported reasons for denying it (8 C.F.R. § 1003.18).
• Deferred action: When a person is in proceedings before an immigration judge, the request goes to ICE. USCIS generally will not consider granting it (USCIS Policy Manual).

A request to DHS counsel and a request to the judge follow different paths, so the venue shapes the strategy. The filing route depends on the case stage. The first review checks the docket before any request type is recommended.

Factors Officials Weigh in a PD Request

Officials look at the whole file, not one fact alone. USCIS judges discretion by the totality of the circumstances (USCIS Policy Manual).

Family ties in the United States are one factor USCIS lists in its discretionary analysis (USCIS Policy Manual). Length of lawful residence in the United States and any immigration status held during that residence, along with community ties, are also commonly documented in a file.

USCIS says negative factors must never be analyzed in a generalized way, so each one needs an answer tied to the facts (USCIS Policy Manual).

Criminal history can be an important factor in many immigration matters. USCIS generally does not favorably exercise discretion in certain cases involving violent or dangerous crimes, except in extraordinary circumstances (USCIS Policy Manual).

A complete and accurate record matters. An omission or an inconsistency can weaken a request, so the file is checked against the court record before anything is filed. A strong showing in one area does not decide the request on its own.

What Our Representation Covers

Representation covers the review, evidence, drafting, filing, and follow-up for a PD request.

• Case review: The notice to appear, the charges, the hearing history, and any prior filings. This shows whether a PD request fits.
• Evidence: Identity and status documents, proof of residence, family records, employment letters, and medical records where they relate to the request.
• Drafting: A written request and cover letter, with an exhibit index so the reviewing official can find each item.
• Filing and tracking: The request is filed, tracked, and answered when the government asks for more evidence.
• Hearings: Attendance at any hearing the court sets. A judge may grant a continuance for good cause (8 C.F.R. § 1003.29).
• Related matters: Adjustment of status, family petitions, removal of conditions on a green card, waivers, and a BIA appeal if the case is denied.

If a matter falls outside this practice or needs another lawyer or firm, the office will tell you.

How the Process Works

The process runs in five steps, from first contact through review of the outcome.

1. First contact: Describe the case by form, phone, or WhatsApp.
2. Paid consultation: Review the charging document, the hearing schedule, and the facts in the record. Timing matters. A hearing cannot be set earlier than 10 days after the notice to appear is served, unless the person asks for an earlier date in writing (8 U.S.C. § 1229).
3. Document checklist: Gather records against a written list, with deadlines set around the court calendar.
4. Draft, file, and track: Prepare the request, file it, and watch the docket for the government’s response and any court order.
5. Outcome review: Go over the result and the next steps, including whether an appeal fits. A BIA appeal is filed on Form EOIR-26 directly with the Board within 10 calendar days of the judge’s decision. The deadline is 30 calendar days if the judge decided an asylum application and did not deny it under section 208(a)(2)(A), (B), or (C) of the Act. The appeal must include the fee or a Form EOIR-26A fee waiver request, and any issue not raised in it is waived (8 C.F.R. § 1003.38).

The consultation is paid. The office confirms the fee and any filing or other costs in writing before representation begins.

Why Clients Work With This Practice

AG Immigration Law P.A. focuses on removal defense. The practice also handles adjustment of status, family petitions, naturalization, removal of conditions on green cards, waivers, and BIA appeals.

Adriana Gomez is the responsible lawyer for this page. Support staff help with document collection, scheduling, and filing logistics.

The practice explains the limits of PD first. Readers learn what a request can and cannot do before anything is filed.

Frequently Asked Questions About PD in Florida