What Is Prosecutorial Discretion?
If you or someone you love is in removal proceedings, you have probably heard the phrase "prosecutorial discretion," sometimes shortened to PD. It is one of the most misunderstood concepts in immigration law, and in 2026 it is also one of the most important to understand clearly, because what it can do for you has changed.
Prosecutorial discretion is simply the government's choice about whether and how to pursue a case. Just as a local district attorney can decide not to prosecute a minor offense, the immigration authorities can decide not to pursue a removal case aggressively, to pause it, or to close it out. In immigration court, the person making those decisions on the government's side is not the judge. It is a Department of Homeland Security attorney who works for ICE's Office of the Principal Legal Advisor, known as OPLA. These are the attorneys who stand across from you and your lawyer in court and argue the government's position.
It is important to be clear about one thing from the start. Prosecutorial discretion is not a green card, a visa, or any kind of lawful status. By itself, it does not give you permission to stay in the United States permanently. What it can do is change how, or whether, the government pursues the case against you, which can buy time, reduce risk, and in some situations open the door to other solutions.
Who Decides: The Role of ICE OPLA
In every immigration court case, two sides appear before the immigration judge. On one side is the noncitizen, often called the respondent, ideally represented by an attorney. On the other side is the government, represented by an OPLA attorney. The judge is neutral and decides the case, but the OPLA attorney controls many of the government's choices along the way.
OPLA attorneys have authority over a range of enforcement decisions in their cases. They can decide whether to file the charging document that starts a case, whether to move to dismiss or pause a case, whether to oppose or join a request for relief, whether to agree to a continuance, what position to take on bond and detention, and whether to appeal a decision they do not like. Each of those choices is a form of prosecutorial discretion, and historically a favorable choice by OPLA could make an enormous difference in a family's life.
The Many Forms of Prosecutorial Discretion
PD is not a single action. It is an umbrella term for several different things the government can do. Understanding the differences matters, because they have very different consequences.
Declining to File or Cancelling Charges Early
The most favorable form of discretion happens before a case even reaches the judge, when the government decides not to issue a Notice to Appear (the document, Form I-862, that places someone in removal proceedings) in the first place. Once a case is filed, however, the government generally cannot simply make it disappear. Under the immigration regulations and Board of Immigration Appeals precedent, ICE cannot unilaterally cancel a Notice to Appear after it has been filed with the court. Instead, the government must ask the judge to close the case, and the judge decides.
Administrative Closure
Administrative closure pauses a case and removes it from the immigration judge's active calendar without ending it. The case is not over; it is set aside and can be returned to the docket later if either party asks. Administrative closure is often used when something else is pending that could resolve the situation, such as a petition before USCIS, and it makes little sense to keep pushing the court case forward in the meantime.
Termination
Termination ends the proceedings entirely. Unlike administrative closure, which only pauses the case, termination closes it out. The government could, in theory, file new charges later, but for the moment the case is finished. Termination is often the goal when the charges were improper or when the person has another path to status that is better pursued outside of court.
Dismissal
Dismissal is when DHS itself asks the court to close out the case it filed, typically under the regulation at 8 CFR 1239.2(c). This can sound like good news, and sometimes it is. But as explained below, dismissal can also strip away your chance to ask the judge for relief, so it is not always in your interest.
Other Favorable Positions
Discretion also shows up in smaller but meaningful ways. OPLA can agree not to oppose your application for relief, join a motion to reopen or reconsider a case, stipulate that you are eligible for a benefit, or take a favorable position at a bond hearing so a detained person can be released while the case continues. A separate, related tool is deferred action, a decision to forbear from pursuing removal for a set period, which in some cases can allow a person to apply for work authorization.
Key Point: Administrative closure, termination, and dismissal are not the same thing, and the right one for you depends entirely on your situation. Closure pauses your case, termination ends it, and dismissal removes the case the government filed but may also remove your opportunity to seek relief from the judge. Never agree to any of them without understanding the consequences for your specific circumstances.
What Changed: Prosecutorial Discretion in 2026
This is the part that matters most right now, and where a lot of outdated advice is circulating in immigrant communities.
For several years, the government issued written guidance telling OPLA attorneys when they should exercise favorable discretion. The best known of these was the memo from former Principal Legal Advisor Kerry Doyle, issued on April 3, 2022 and commonly called the Doyle Memo. It directed government attorneys to focus enforcement on certain priorities and to use discretion generously in cases that fell outside those priorities, such as cases involving long-time residents, families, and people with strong equities.
That framework has been dismantled. On January 20, 2025, Executive Order 14159, titled "Protecting the American People Against Invasion," revoked the prior administration's civil immigration enforcement priorities and directed DHS to rescind the guidance built on them. The Doyle Memo and the related priority memos no longer govern how OPLA attorneys make decisions. The current enforcement priorities are far broader, reaching essentially anyone without lawful status, including people whose only issue is unlawful presence or unlawful entry.
The practical result is that favorable prosecutorial discretion is much harder to obtain in 2026 than it was a few years ago. A request that would almost certainly have been granted under the Doyle Memo may now be denied. This does not mean PD is gone. The legal mechanisms still exist, judges still have authority, and requests are still worth making in the right cases. But no one should assume a favorable outcome, and no one should rely on advice based on the way things worked in 2022 or 2023.
The Judge's Authority Still Matters
Here is an encouraging point that often gets lost. Even when the government opposes pausing or ending a case, the immigration judge is not powerless.
Under the regulation at 8 CFR 1003.10, immigration judges are directed to exercise their own independent judgment and may take actions necessary or appropriate to resolve a case, including administrative closure, termination, and dismissal. An EOIR final rule that took effect on July 29, 2024 confirmed this authority. Immigration judges and the Board of Immigration Appeals may grant administrative closure or termination in appropriate cases, even over the objection of DHS.
When the government opposes a motion to close or terminate, the judge does not simply defer to the government. The judge weighs the totality of the circumstances and considers regulatory factors, such as the likelihood that the person will obtain relief in another forum, how long the case would otherwise take, and whether the person is detained. This means a well-prepared motion, supported by strong evidence and a clear legal argument, can succeed even when the OPLA attorney says no.
Important: Because judges retain this authority, a thoughtful, well-documented motion is more valuable than ever. The era of routinely granted discretion is over, which means the quality of the legal work you bring to the court now carries more weight in the outcome.
When Dismissal Is a Double-Edged Sword
Many people assume that having their case dismissed is always a victory. It can be. But it is one of the most important areas where good legal advice can change the result, because dismissal can quietly take away something valuable.
If you are in removal proceedings and you have a strong application for relief, such as cancellation of removal, asylum, or adjustment of status, the immigration court may be the only place you can present that application to a judge. If your case is dismissed before you have your day in court, you lose that opportunity. And if you do not have lawful status, a dismissal can leave you exposed to a new arrest or a new Notice to Appear down the road, sometimes on worse terms.
In other situations the opposite is true. For someone who has a clear path to a green card through USCIS and no realistic relief to pursue in court, getting out of removal proceedings may be exactly what they need. There is no universal answer. The right move depends on what relief you qualify for, where you are in the process, and what risks you face. This is precisely the kind of decision that should never be made without an attorney who has reviewed your entire history.
How to Request Prosecutorial Discretion
If, after careful analysis, PD is the right strategy in your case, requests are generally made in writing to the OPLA office handling the matter, and the issue can also be raised before the immigration judge through a motion. A strong request usually documents the person's positive equities, such as long residence in the community, family ties, employment, community involvement, medical needs, and the absence of a serious criminal record.
There is a real consideration to weigh before making any request. A PD request shares information about you and your history with the government, and in the current enforcement climate the request may well be denied. That is why the decision to ask, and how to frame the ask, should be made strategically with counsel. In some cases the stronger and safer path is not to request discretion at all, but to prepare a powerful application for relief and present it to the judge.
Why This Matters for Massachusetts Families
Massachusetts is home to large and vibrant immigrant communities, including a significant Brazilian community, and the immigration court system that serves Massachusetts, including the Boston Immigration Court, handles a heavy volume of cases. The way prosecutorial discretion is exercised has a direct effect on real families here: whether a parent is released from detention, whether a long-time resident gets to keep fighting their case, and whether a person with a pending USCIS petition can pause their court case while it is decided.
The landscape has tightened, but it has not closed. People still win release on bond. Judges still close and terminate cases in appropriate situations. Strong applications for relief still succeed. What has changed is that nothing can be taken for granted, and outcomes depend more than ever on careful preparation, accurate legal analysis, and an honest assessment of the risks and options in each individual case.
Frequently Asked Questions About Prosecutorial Discretion
Final Thoughts
Prosecutorial discretion remains a real and sometimes powerful tool, but the rules of the game have shifted. The generous, priority-based discretion of recent years has been rolled back, and favorable outcomes can no longer be assumed. At the same time, immigration judges still have meaningful authority to pause and end cases, strong applications for relief still win, and the quality of legal preparation matters more than ever.
If you are in removal proceedings, the most important thing you can do is get an honest, individualized assessment of your situation before you make any decisions. The difference between asking for discretion and fighting for relief, or between accepting a dismissal and keeping your case before the judge, can change the entire course of your life and your family's future. Do not navigate it alone, and do not rely on what worked for someone else a few years ago.
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