Prosecutorial discretion
The Department of Homeland Security can ask the immigration judge to dismiss the case it brought. The vehicle is a motion to dismiss under 8 C.F.R. 1239.2(c), on the grounds in 8 C.F.R. 239.2(a), and the judge decides it. Whether the government will agree depends on enforcement priorities that change with administrations and are not published in any form we can rely on. The request is made case by case, to the trial attorney, on the strength of the individual record.
Current as of September 2026. We re-check this page every quarter and after any rule change.
Every prosecutor decides which cases to bring and which to drop, and the immigration system is no different. Prosecutorial discretion is the government's choice not to pursue a removal case it could pursue. It is not relief the judge grants and it is not something you apply for on a form. It is a request to the other side, and it belongs on the checklist at every form of relief because, when it works, it ends the case without any application at all.
The mechanism
Once a Notice to Appear has been filed with the immigration court, the case belongs to the court and the government cannot simply withdraw it. Under 8 C.F.R. 1239.2(c), DHS may move the immigration judge to dismiss the proceedings, on any of the grounds set out in 8 C.F.R. 239.2(a). Two of those grounds do almost all of the work:
- The Notice to Appear was improvidently issued. It should not have been filed in the first place, because of a mistake of fact or law at the time.
- Circumstances have changed after the notice was issued to such an extent that continuation is no longer in the best interest of the government.
The second is the prosecutorial-discretion ground. It does not require that the charge be wrong. It says that, right or wrong, the government has decided that this case is not one it wants to spend a hearing on.
The judge decides. The motion is a motion like any other. The respondent may join it, oppose it, or take no position, and the judge grants or denies it. A joint motion, filed by both parties, is the strongest form: the 2024 docket-management rule at 8 C.F.R. 1003.18(d) lists a joint request among the circumstances in which the judge may terminate as a matter of discretion. See motions to terminate for the rule and the callout on how we check it.
Dismissal is not the only thing to ask for
The trial attorney can agree to less than dismissal. The government can join or not oppose a motion for administrative closure while a petition is decided at USCIS, stipulate to facts or to eligibility for relief so a hearing is shorter, agree to a continuance, or agree not to oppose a particular application. Each of those is prosecutorial discretion too, and the request should say which one it is asking for and why.
What a request contains
A request for prosecutorial discretion is a letter or a memorandum to the government's trial attorney, with exhibits. It is written for a reader who has hundreds of cases and a few minutes for this one, so it leads with the reason and proves it.
- The ask, in the first sentence. Dismissal under 1239.2(c), or joinder in a motion to administratively close, or a stipulation.
- The equities. Length of residence in the United States. Family: citizen and permanent resident spouse, children and parents, with the documents. Employment and tax history. Community involvement, with letters from people who can be contacted.
- Ties, and the absence of them elsewhere. Who depends on you here, and what waits in the country of removal.
- Medical. Your own conditions and those of family members who depend on you, with records and a treating provider's letter.
- Military service, your own or a close family member's, with the record.
- The criminal history, explained. Not omitted. The trial attorney has the record. The request gives the disposition of every arrest, the context, the time that has passed, the sentence served, and the evidence of rehabilitation. A request that leaves out an arrest the government knows about is worse than no request.
- Any pending path to status. A pending I-130, I-918 or I-360, with the receipt, and an explanation of how the case would resolve if the government stepped aside.
- Why this case, now. What has changed since the Notice to Appear was issued that makes continuing it no longer in the government's interest.
The request is made in writing, it is followed up, and if the trial attorney agrees, the motion is filed and the judge rules. If the trial attorney declines, the case continues, and nothing in the request is lost: the same equities are the evidence for cancellation, for a waiver, and for the discretionary decision on any application.
Why we do not publish the current priorities
Before January 2025, prosecutorial discretion in removal cases was governed by a published framework of DHS and ICE memoranda that set out enforcement priorities and the factors trial attorneys were to weigh. That framework was rescinded. What has replaced it, how it is applied in each field office, and how it will read next quarter are not things we can state on a public page with confidence that they will still be true when you read it.
So we do not publish a summary of current priorities. A page that did would be stale within a quarter and would mislead the people who rely on it most. What we do instead is ask, case by case, of the trial attorney assigned to the case, with the record in hand. That is how the mechanism has always actually worked, whatever the memoranda of the moment said, and it is the only method that reflects what the government is doing today rather than what it was doing when a page was written.
Do not stop preparing the defense
A request for prosecutorial discretion is made alongside the defense, never instead of it. The filing deadlines set by the judge keep running, the applications for relief are filed on time, and the case is prepared for the individual hearing as though no request had been made. If the government agrees, the preparation was the evidence that persuaded it. If the government declines, the preparation is the case.
Dismissal, termination and closure
| Vehicle | Who moves | What it does | Authority |
|---|---|---|---|
| Dismissal | DHS, alone or jointly | Ends the case on the government's motion. No order, no relief | 8 C.F.R. 1239.2(c); 8 C.F.R. 239.2(a) |
| Termination | Respondent, or the judge on a regulatory ground | Ends the case because the charge fails, the notice is defective and uncured, naturalization is pending, or the regulation requires or permits it | 8 C.F.R. 1003.18(d); see motions to terminate |
| Administrative closure | Either party | Pauses the case off the active docket while something is decided elsewhere | 8 C.F.R. 1003.18(c); see administrative closure |
There is no government filing fee for a motion to dismiss, a motion to terminate or a motion to administratively close a case pending before the immigration judge. Fees apply to motions to reopen and reconsider after a decision, and those are government fees, not our legal fees.
Read next: motions to terminate, administrative closure, the first hearing, or every form of relief.
Common questions
What is prosecutorial discretion in immigration court?
It is the government's decision not to pursue a removal case it could pursue. In court, the mechanism is a motion by DHS to dismiss its own Notice to Appear under 8 C.F.R. 1239.2(c), on the grounds in 8 C.F.R. 239.2(a), most often that circumstances have changed so that continuing the case is no longer in the government's interest. The immigration judge grants or denies the motion.
What are the current priorities?
We do not publish them. The memorandum framework that governed prosecutorial discretion before January 2025 was rescinded, and any summary of what has replaced it would be stale within a quarter. What we can say is that a request is made to the government's trial attorney on the facts of your case, and that the answer depends on the record you put in front of them.
If the case is dismissed, do I have status?
Not by itself. Dismissal returns you to the position you were in before the Notice to Appear was filed. If you had a green card, you keep it. If you had no status, you still have none, but you have no removal order and you are free to pursue whatever you are eligible for outside of court, such as a pending family petition.
Can the government start the case again?
In most circumstances, yes. Dismissal is not a ruling that you can never be removed. If DHS later chooses to file a new Notice to Appear on a charge it can prove, a new case begins. What dismissal prevents is a removal order in the case that was dismissed.
Tell us where your case is. We will tell you what is still possible.
You get a free case review with an attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will tell you what stage you are at, which forms of relief are open to you, what your deadlines are, and whether we can help. If we cannot, we will say so.