Immigration Court Guidance on Prosecutorial Discretion

HomeNews & EventsImmigration Court Guidance on Prosecutorial Discretion

Immigration News & Events



Immigration Court Guidance on Prosecutorial Discretion

Share This Post: facebooktwitterLinkedIn

On September 28, 2023, David Neal, Director of the Executive Office for Immigration Review (EOIR), the agency running the nation’s immigration courts and the Board of Immigration Appeals, published guidance to immigration judges on the Department of Homeland Security’s enforcement priorities and prosecutorial discretion initiatives.

While prosecutorial discretion is exercised by DHS, not the immigration courts, the guidance indicated that EOIR adjudicators, including immigration judges and appellate immigration judges, should focus on cases where the noncitizen is a civil enforcement priority for DHS or desires a full adjudication of an application for immigration relief.

Under the new guidance, immigration judges should be asking DHS whether the noncitizen in immigration court is considered a civil immigration enforcement priority.  Where the answer is “no,” immigration judges should ask the parties for their views on how the case should be resolved. Resolutions may include dismissal, stipulations to relief, or other resolutions as appropriate.  If DHS wants dismissal, the guidance notes that the immigration judge should still consider any objections to the dismissal by the noncitizen and where a noncitizen wants to pursue relief, that is a valid reason for going forward with the case.

Appellate immigration judges, for cases at the Board of Immigration Appeals, are similarly encouraged to inquire whether the noncitizen is an enforcement priority and give the parties the opportunity to make requests for alternative resolutions for non-priority cases.

The Director’s Memo is welcome guidance as it reaffirms that immigration judges’ role as being to resolve disputes between the parties. Where the parties agree on a resolution, the immigration judge’s default should be to respect the agreement. At the same time, the Director’s Memo recognizes that many noncitizens do not want their cases dismissed and clarifies that where the noncitizen wants to go forward with the case to pursue an application for relief in immigration court, the case proceeding is consistent with EOIR’s efforts to conserve judicial resources even if DHS would prefer dismissal.

Effective on October 16th, 2023, if your pending asylum case in immigration court was dismissed or terminated, you still have an option available to continue your pursuit for asylum. USCIS…


Losing a loved one is an experience that profoundly touches the lives of those left behind. The toll it takes is immeasurable for anyone, but the challenges become even more…



Recognized Leaders In
Immigration Law

Joseph & Hall P.C. is a full-service immigration law firm. We pride ourselves on being nationwide experts in all areas of immigration law, including the practice areas listed below. Our attorneys frequently are asked to speak both locally and nationally on a wide variety of immigration topics. For an overview of each practice area, please click the links below. If you have any questions about how these practice areas may apply to your case, please do not hesitate to contact our firm.


We Are Committed to Your Dreams.

Countless people dream of becoming a U.S. citizen. If your application was rejected by the USCIS, we are here to fight for your best interests.

Get in touch with us. Write us a message.

  • This field is for validation purposes and should be left unchanged.
Tap Here To Schedule An Appointment
It's Fast & Easy