Prosecutorial Discretion

April 23, 2012

Process to Administratively Close Deportation Cases Pending Before Immigration Courts.

The main immigration enforcement agency (ICE) has been reviewing over 300,000 pending deportation cases. Cases that are not a high priority for removal are proposed for administrative closure. Likely candidates for closure are individuals who have been in the United States for many years, have immediate family members who are U.S. citizens or permanent residents, and do not have a criminal record. If a case meets the standards, ICE and/or the foreign national may move the court to administratively close it. A major limitation at present is that administrative closure normally does not include work authorization, nor grant any long-term status.  However, for some individuals, this may still be a useful option, rather than expending funds on legal defense, or risking a final order of deportation.

A request for prosecutorial discretion may be a good option for those who are in proceedings and are not currently eligible for any other form of relief. For example, where the individual is waiting for her priority date based on a filed visa petition, it may be a good idea to close the case so she is no longer in removal proceedings. If there is currently available relief however, it may not be in the person’s interest to have their case closed since administrative closure provides no actual status. For example, an individual may have a strong application for asylum or withholding of removal that she may want to decide to move forward with in court instead.

Although ICE prosecutors are reviewing and identifying cases they think are candidates for administrative closure, the individual and their attorney may also move the court to administratively close the case. The court has authority to administratively close a case whether both parties agree or not. Although this process lets the case be closed, the case remains in the court system and may be reopened at any time by either ICE or the foreign national. For example, if that individual commits a crime, ICE may recalendar the case in order to obtain a final deportation order. Or if the individual becomes eligible to adjust status based on a current priority date, or because her spouse becomes a citizen, the individual could move to reopen the case.

If you are, or someone you know is, currently in removal proceedings, prosecutorial discretion (administrative closure) may be an option for you. However, it is important to consult with an immigration attorney who would be able to evaluate the case and determine whether it is in your interest to have your case administratively closed. Experienced attorneys at Gibbs Houston Pauw are available to discuss your case and provide you with appropriate legal advice.

Marina Grabchuk
Robert Gibbs

Skip to content