By Attorney Xotchitl Rodriguez – Reyes Blum PLLC
Prosecutorial discretion gives the government the authority to pursue or dismiss (close) cases based on its own discretion. In Immigration Court, prosecutorial discretion means that, within certain guidelines, the attorneys for ICE can decide which cases they want to bring to trial and which cases they are going to move to dismiss. Prosecutorial discretion also means that, generally, the Immigration Judge must grant an ICE attorney’s motion to dismiss a case because that attorney is the one who decides which cases to pursue.
As of right now, ICE attorneys have the discretion to move to dismiss cases that are not considered a priority for the government. These cases involve people who 1) last entered the United States before November 1, 2020; 2) have no major criminal history, and 3) are not terrorists or spies. At this time, the US government is choosing not to focus on this group of people, so ICE attorneys have the discretion to move to dismiss these cases without prejudice. When a case is dismissed without prejudice, the person can stay in the United States without a removal order, but also without a decision on their application. The government is simply not trying to remove the person. “Without prejudice” means that the government can reopen the case later, but given the high number of cases that do not fall into the category of non-priority, this may take years if it happens at all. If a person in immigration proceedings wants their case dismissed, and is not a priority for removal, they can request the ICE attorney assigned to their case join them in a motion to dismiss.
So why would a person in Immigration Court want their case dismissed? If there is no asylum application pending, they cannot renew any work authorizations once they expire, which puts them at risk of being unemployed, which is a major concern for most people in Immigration Court. It also means that the application with the Court is not granted, and the person remains in the United States without status, which is a very vulnerable position.
On the other hand, as of the year 2024, US Immigration Courts grant an average of 40% of asylum applications, asylum being the most common form of relief requested. This varies by state, city, and even individual Judge, but fewer than half of asylum applications are granted nation-wide. This makes the odds of a removal order higher than is comfortable for most people. While it is possible to postpone being physically removed from the US, a removal order puts the person at a higher risk of being taken away from a country and community they have probably been a part of for at least a few years. It also means that, should US law, or the person’s circumstances change (e.g. by marrying a US citizen or resident, being the victim of a crime, etc.), it is much more difficult to apply for other forms of relief with a removal order.
More than anything, dismissing a case buys the person time. This could be time to get married or time for laws in the United States to change in favor of immigrants. Dismissing a case means that, while the person does not have status, the government is not actively trying to remove them, and they are allowed to keep living in the United States. Regardless of your situation, deciding whether to dismiss your case or not is something to discuss with your attorney, so they can help you decide if dismissal is an appropriate action for your case.