Request for Prosecutorial Discretion
A formal administrative request submitted to ICE Office of the Principal Legal Advisor (OPLA) seeking favorable discretion to dismiss, terminate, or administratively close removal proceedings.
1. Overview of the Process & Reasons to Pursue
Prosecutorial Discretion (PD) is the authority inherent in law enforcement agencies—specifically Immigration and Customs Enforcement (ICE) and its legal division, the Office of the Principal Legal Advisor (OPLA)—to decide how to allocate enforcement resources and whether to pursue, settle, or dismiss deportation proceedings against an individual. Under Department of Homeland Security enforcement priority memoranda, respondents in removal proceedings can submit formal PD requests asking government attorneys to join in a joint motion to dismiss proceedings without prejudice, agree to administrative closure, or stipulate to statutory relief.
Why Someone Pursues This Process / How One Enters It
Securing prosecutorial discretion ends the constant stress and existential threat of removal proceedings before an Immigration Judge. Dismissing immigration court proceedings without prejudice removes the respondent from the court docket, eliminates the risk of an imminent removal order, and allows the immigrant to apply for affirmative benefits—such as adjustment of status—safely with USCIS.
2. How Long the Process Usually Takes
2 to 6 months from the submission of the formal written PD request to ICE OPLA until a determination is made.
3. Forms That Need to Be Completed
Successfully completing this process involves preparing and submitting official government petitions and affidavits:
Formal Written PD Packet
Comprehensive legal memorandum and evidentiary submission to the local ICE OPLA Field Office
Form G-28 / EOIR-28
Notice of Entry of Appearance as Attorney
Joint Motion to Dismiss
Formal joint motion filed with the Immigration Court once OPLA agrees to exercise PD
4. Supporting Evidence & Documentation Checklist
In immigration proceedings, the applicant carries the burden of proof. A complete evidentiary packet must include:
- Length of continuous residence and physical presence in the United States
- Strong family ties: birth certificates of U.S. citizen children, marriage certificates, and medical records of dependent relatives
- Clean criminal record or certified records demonstrating minor, remote offenses with complete rehabilitation
- Continuous tax compliance: IRS tax return transcripts and proof of wage withholding
- Proof that the respondent is NOT an enforcement priority (no national security threats, violent felonies, or recent border entry)
- Evidence of an affirmative pathway to lawful status with USCIS (e.g., approved Form I-130, approved U-visa, or eligibility for green card)
Before filing, you must audit your entire background for statutory bars, criminal inadmissibility, and prior immigration violations. Any of the following issues can lead to immediate denial, forfeiture of filing fees, or removal proceedings:
- Classification as a DHS Enforcement Priority: Individuals deemed threats to national security (terrorism, espionage), threats to public safety (convictions for aggravated felonies or serious gang/violent crimes), or recent border crossers.
- Active Warrants or Pending Criminal Charges: OPLA will generally refuse PD if unresolved criminal proceedings are active.
- Lack of Documented Positive Equities: Failure to demonstrate community ties, continuous tax compliance, or positive contributions.
- Opposition from ICE Enforcement and Removal Operations (ERO): Strong agency objections based on flight risk or prior immigration fraud.
6. Government Filing Fees
Government filing fees are strictly non-refundable and set by federal regulation (USCIS, EOIR, and Department of State fee schedules):
Note: Government fees are subject to periodic regulatory updates. Fee waivers (Form I-912 or EOIR-26A) may be available for qualifying indigent applicants on select forms.
7. Possible Adjudication Outcomes
Upon review by the adjudicating agency, asylum office, or court, this process can lead to the following formal outcomes:
- PD Granted (Dismissal): OPLA signs a Joint Motion to Dismiss Removal Proceedings without prejudice; the IJ dismisses the case.
- PD Granted (Administrative Closure): OPLA joins in a motion to administratively close proceedings and remove the case from the active calendar.
- PD Granted (Stipulation): OPLA stipulates to concessions of relief or waives appeal rights.
- PD Denied: OPLA declines to exercise discretion; the case proceeds to a contested master or individual hearing before the Immigration Judge.
8. What Can Be Done If Your Outcome Is Negative?
An ICE OPLA denial of prosecutorial discretion is a discretionary executive decision and cannot be appealed to the Immigration Court, the BIA, or federal courts. However, if PD is denied, the respondent continues defending their case on the merits before the Immigration Judge (e.g., seeking Asylum, Cancellation of Removal, or Waivers). If new positive equities develop or revised DHS enforcement guidelines are published, counsel can resubmit a renewed PD request.
9. Range of Legal Fees Charged by Lawyers
$2,500 to $5,000 typical attorney legal fee for compiling equity packets, negotiating with ICE trial attorneys, and drafting joint court pleadings.
At JBC Law Office, attorney Joseph B. Caraccio provides transparent flat-fee representation with written retainer agreements, personalized evidentiary assembly, and direct attorney communication at every step.