prosecutorial discretion immigration attorney

Your case isn't urgent to ICE, and you know it. No criminal record, years of continuous presence, maybe a pending I-130 or U visa petition working its way through its own queue — the kind of file a government attorney could set aside without a second thought. You're not asking to win a trial. You're asking the government to agree your case doesn't belong on an active docket, so you can keep pursuing the status you're actually eligible for without a removal order hanging over it. The real worry isn't a raid next week. It's whether ICE's Houston office will read the request you send at all, or route it to a form denial because the enforcement priorities changed again.

Prosecutorial discretion (PD) asks ICE's Office of the Principal Legal Advisor (OPLA) to close, dismiss, or administratively close a low-priority removal case under 8 C.F.R. § 1239.2(c) and OPLA's internal guidance. Eligibility criteria shifted after the 2022 Doyle Memorandum and again following the January 2025 policy rescissions, so current OPLA intake rules control.

The Hard Truth

Prosecutorial discretion isn't a benefit with eligibility boxes you check off. A government attorney decides whether to grant it, deny it, or leave the request unanswered entirely. The Supreme Court confirmed that this discretion sits with the executive branch in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), and no immigration court can force OPLA to act on a particular file.

The ground shifted again in January 2025. DHS withdrew the 2021 Mayorkas enforcement-priorities framework and the operational guidance built on top of it, including much of what the April 3, 2022 Doyle Memorandum (ICE OPLA) had set out. Offices nationwide, including Houston's, are now working from narrower and less publicly documented criteria. A file that would have been a strong PD candidate in 2023 is not automatically strong today. Anyone promising a predictable formula is guessing.

Volume hasn't improved either. EOIR's national backlog held more than 3.7 million pending cases as of mid-2024 (TRAC Immigration, Immigration Court Backlog Tool, https://trac.syr.edu/phptools/immigration/court_backlog/). OPLA attorneys triage requests against that caseload. A request that doesn't map cleanly to whatever the current priorities are gets a form denial, not a conversation.

What Happens If You Wait

Sitting on a low-priority case doesn't freeze it — it just keeps moving toward a hearing date you may not expect for years, and then expect it to go smoothly. Houston's non-detained docket schedules individual hearings far out; missing one, even by mistake, produces an in absentia removal order under INA § 240(b)(5). Reopening that order requires a motion filed within 90 days under INA § 240(c)(7)(C)(i) and 8 C.F.R. § 1003.23(b)(4)(ii), and after that window closes, the bar to reopening is much harder to clear.

Meanwhile, the relief you're actually counting on keeps its own clock. USCIS I-130 processing times run on separate, published schedules by service center (USCIS Processing Times, https://egov.uscis.gov/processing-times/). U visa petitioners face the statutory 10,000-visa annual cap under INA § 214(p)(2), which has produced a waitlist USCIS's own published statistics show now running several years deep as of 2024. None of that slows down if your removal case stays active and unaddressed — a pending I-130 or U visa petition does not pause a removal docket on its own. Filing the PD request now, while the file is still genuinely low-priority on paper, is the only way to get ahead of a hearing date that eventually arrives regardless.

Step-by-Step Process

Screening against current criteria. We pull the A-file history, criminal background (if any), and immigration procedural posture, and measure it against OPLA's current — not 2022's — internal priorities before telling a client this is worth pursuing.
Build the equities package. This means assembling a documented record: proof of continuous presence, tax filings, family ties, any pending benefit (I-130 receipt notice, U visa petition receipt, pending adjustment application), community ties, and, where relevant, Harris County civil court records supporting rehabilitation or hardship claims.
Pre-file contact with ICE OPLA's Houston District Counsel's Office. Per OPLA's own intake protocol described in the Doyle Memorandum, requests go to the assigned trial attorney or chief counsel's intake line before anything is filed with the court — filing a motion cold, without this contact, is a common mistake that gets requests ignored.
Negotiation window. Turnaround varies with OPLA Houston's caseload at the time of the request; in our office's recent intake experience it has typically run six to ten weeks, though that is not a guarantee and shifts with staffing and policy changes.
If OPLA agrees: a joint motion to dismiss the NTA under 8 C.F.R. § 1239.2(c), or a joint motion for administrative closure under Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), is filed with Houston Immigration Court, 126 Northpoint Drive, Houston, TX, following the format in the EOIR Immigration Court Practice Manual, Chapter 5.10 (https://www.justice.gov/eoir/eoir-policy-manual/chapter-5).
If OPLA declines or doesn't respond: the case can still go to the assigned immigration judge directly. After Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), judges retain independent authority to administratively close in some circumstances even without DHS agreement, though Houston's judges vary in how often they'll do that over an OPLA objection.
After a closure or dismissal: the removal case is off the active calendar, but it is not a grant of status. Any underlying petition — adjustment of status (/immigration/adjustment-of-status), a U visa (/immigration/u-visa) — keeps moving through USCIS on its own separate timeline, and that filing continues independently of this process.

A Real-World Example

Call this composite file Ms. R. — not a real client, but a fact pattern we see often on Houston's non-detained docket. She's been in removal proceedings for two years with no criminal history, a U.S. citizen daughter, and a pending U visa petition filed eighteen months ago that's still sitting in USCIS's queue.

Our office screened her file against OPLA's current intake criteria first, not the 2022 Doyle Memo factors by themselves, since those had already been narrowed by the time her request went in. We assembled her equities package: the U visa receipt notice, her daughter's birth certificate, two years of tax transcripts, and letters documenting her work history. That package went to ICE OPLA's Houston District Counsel's Office through the pre-file intake contact described in the Doyle Memorandum, before any motion reached the court.

OPLA's assigned attorney reviewed the file and asked for additional documentation on her daughter's medical needs — a common follow-up request, not a denial. At the next master calendar hearing, the immigration judge continued the case while OPLA's review was pending. As of this writing, the request remains under OPLA's review, and her U visa petition continues through USCIS's separate adjudication queue, unaffected by the status of the removal case. That's what this process actually looks like: you file a documented request, then wait — sometimes weeks, sometimes months — while the court case and the underlying petition keep moving on their own separate tracks.

William J. Vasquez has focused his practice on removal defense and prosecutorial-discretion requests for more than a decade, including direct intake work with ICE OPLA's Houston District Counsel's Office on administrative closure and dismissal requests. He is a member of the Houston Bar Association's Immigration & Nationality Law Section and the AILA Houston Chapter, and tracks each shift in OPLA's internal guidance — including the 2022 Doyle Memorandum and the enforcement-priority rescissions of January 2025 — through those professional channels rather than secondhand reporting. Full bar admission details and case-type experience are listed on his attorney profile (/attorneys/william-j-vasquez).

Key Terms Explained

NTA (Notice to Appear): the charging document that starts removal proceedings in immigration court.

OPLA (Office of the Principal Legal Advisor): ICE's litigating arm; the Houston District Counsel's Office is the OPLA office handling cases filed at Houston Immigration Court.

Equities package: the documentation submitted with a PD request — proof of ties, pending benefits, hardship factors, and background records — organized around whatever priority factors OPLA is currently applying.

In absentia order: a removal order entered when a respondent misses a scheduled hearing, issued under INA § 240(b)(5).

Motion to reopen: the procedural vehicle for challenging a final order, including an in absentia order, generally due within 90 days under 8 C.F.R. § 1003.23(b)(4)(ii).

Non-detained docket: the set of removal cases where the respondent is not in ICE custody, as distinct from detained dockets that move on expedited timelines.

Full definitions of related mechanisms — administrative closure, dismissal, deferred action, and stays of removal — are laid out in the comparison table above.

Frequently Asked Questions

Q: How do I ask ICE to close or dismiss a non-detained removal case? A: Through a documented request to ICE OPLA's local District Counsel's Office — in Houston, that's the OPLA Houston office — submitted before any motion is filed in court, following the intake process described in the Doyle Memorandum. The request has to be tied to OPLA's current priority factors, not a generic hardship letter.

Q: What's the difference between administrative closure and termination of my case? A: Administrative closure pauses the case without ending it — either side can later ask to put it back on the calendar. Termination or dismissal ends the proceeding outright, under 8 C.F.R. § 1239.2(c), though DHS can in some circumstances file a new NTA later. See the comparison table above for how each mechanism differs by permanence and who has to agree.

Q: Can I request prosecutorial discretion while I have a pending I-130 or U visa petition? A: Yes, and a pending petition is often part of the equities package that makes a PD request viable. The immigration court case and the USCIS petition are adjudicated on separate tracks, so a PD grant doesn't resolve the underlying petition, and the petition's pendency doesn't pause the removal case on its own.

Q: Who currently qualifies for prosecutorial discretion after the 2025 policy changes? A: There's no fixed public checklist right now. DHS rescinded the 2021 Mayorkas priorities framework and much of the Doyle Memorandum's operational guidance in January 2025, so current eligibility depends on OPLA's narrower, less-published internal criteria, which our office tracks through direct contact with the Houston District Counsel's Office rather than relying on the outdated 2022 standard.

Q: What happens after ICE agrees to dismiss or administratively close my case? A: The removal case comes off the active docket. It doesn't grant lawful status on its own. Any underlying application — adjustment of status, a U visa, or another form of relief — keeps moving through USCIS on its own timeline and still has to be adjudicated on its own merits.

Q: What does it cost to have an attorney handle a prosecutorial discretion request? A: Fees are generally structured as a flat rate for the eligibility screening, equities package, and OPLA intake negotiation, separate from any fee for litigating the underlying relief (adjustment of status or a U visa petition, for example). Contingency or "no fee unless we win" arrangements don't apply to immigration matters; ask for a written fee agreement before signing anything.

Clients who've worked with our office on removal-defense and prosecutorial-discretion matters consistently describe the same things in reviews on Google and Avvo: direct answers about what OPLA is and isn't likely to do, regular updates while a request sits with the Houston District Counsel's Office, and plain explanations of what a closure or dismissal actually changes and what it doesn't. We don't publish outcome statistics because every OPLA office's posture shifts with policy, and a number from last year's intake climate tells you nothing about this year's.

If your case is sitting quietly on Houston's non-detained docket and you're wondering whether it's worth asking ICE to let it go, the answer depends on specifics OPLA is currently weighing — not on what worked under the 2022 guidance. That's a file-by-file judgment call, not a form you fill out.

Schedule a case assessment with our office to find out whether your file is a realistic candidate for a prosecutorial discretion request under ICE OPLA Houston's current intake criteria, and how that request would interact with any pending adjustment of status or U visa petition you're already counting on. Call or request a consultation through our immigration practice page to get your file reviewed before your next hearing date is set.

Removal Defense Services (/immigration/removal-defense)
Adjustment of Status (/immigration/adjustment-of-status)
U Visa Petitions (/immigration/u-visa)
Attorney Profile: William J. Vasquez (/attorneys/william-j-vasquez)
Houston Immigration Court Information (EOIR)
TRAC Immigration Court Backlog Tool