Prosecutorial Discretion: Getting ICE to Close Your Case

Prosecutorial Discretion: Getting ICE to Close Your Case

Thanks for visiting Spodek Law Group. We’re a second-generation immigration law firm managed by Todd Spodek, with over 40 years of combined experience. Our cases have been featured nationally – you might know us from representing Anna Delvey in the Netflix series, or our work on the Ghislaine Maxwell juror case. You’re facing deportation and you need ICE to stop pursuing your case. You’ve heard the term “prosecutorial discretion” but you don’t know if it still works in 2025. Whether ICE will close your case, how the process works now, and what your real options are – that’s what this covers.

Prosecutorial Discretion Still Exists – But 2025 Changed Everything

When ICE exercises prosecutorial discretion, they choose not to deport you even though they legally could. Your case gets closed, deportation proceedings stop, and while you’re not getting a green card, you’re also not being removed.

The 2025 enforcement climate is brutal. ICE operates under daily arrest quotas – field offices face minimum targets of 75 arrests per day, and the administration pushed for 3,000 arrests daily nationwide. Senior ICE officials were fired for not hitting numbers, and the procedures and email addresses for requesting prosecutorial discretion were removed from the ICE website.

ICE is less willing to exercise discretion than at any point in the last decade, but there’s something most people don’t know: you don’t always need ICE’s agreement anymore.

Immigration Judges Can Often Close Your Case Even When ICE Objects

Regulations published in May 2024 changed the game by giving immigration judges independent authority to administratively close or terminate removal proceedings – even when ICE fights it.

Before these regulations, if ICE opposed closing your case, the judge usually couldn’t help you. Those days are over in most situations. Judges now evaluate case-specific factors and decide if closing your case makes sense, and when you and ICE file a joint motion asking the judge to close your case, the judge must grant it unless there are “unusual, clearly identified, and supported reasons” to deny.

This creates two paths forward. You can try to convince ICE to close your case directly through prosecutorial discretion, or you can ask the immigration judge to close your case using the 2024 regulations. Given current enforcement priorities, the second path is often more realistic, though outcomes vary depending on your judge and jurisdiction.

Length Of Time In The U.S. Matters More Than Anything

Both ICE and immigration judges ask the same question: does it make sense to use limited resources deporting you, or should they focus on actual priorities?

Imagine you’ve been here 18 years with three U.S. citizen kids under 12, married to a permanent resident, owning a small business with no arrests, and pursuing a family-based green card that’ll take years to become available. That’s typically a strong case for administrative closure, though nothing is guaranteed. Length of time in the U.S. carries enormous weight – ten years is generally good, twenty years is better, but each case depends on the totality of circumstances.

A clean criminal record is critical in most cases, as is employment history that shows you’re contributing rather than taking. When you have U.S. citizen family members who depend on you financially and emotionally, or pending applications for legal status like a U visa or asylum, these factors can strengthen your case considerably.

But serious criminal convictions will often destroy your chances, though not always. Violence, drugs, DUI – especially multiple offenses – combined with recent arrival (less than 3 years in the U.S.), prior deportation orders you violated, gang affiliations, or national security concerns create nearly insurmountable obstacles. One old misdemeanor typically won’t kill your case, but multiple felonies probably will.

Under previous administrations, ICE was required to consider whether you’re a crime victim, but that policy was rescinded in 2025. Being a crime victim doesn’t automatically help anymore, though some judges may still consider it.

How To Request Prosecutorial Discretion From ICE

The formal ICE procedures were removed from their website, but the process still exists. You submit a written request to the ICE Office of the Principal Legal Advisor handling your case – an ICE attorney is prosecuting your deportation, and you’re asking them to close it.

Your request needs to be detailed and documented, starting with a cover letter that explains who you are, how long you’ve been in the U.S., your family ties, your work history, and why deporting you serves no enforcement purpose. Names, dates, facts – be specific about everything.

Include declarations from people who know your situation. Your spouse can explain how you support the family, your employer can describe your work history, your doctor can explain medical conditions requiring treatment, and your kids’ teachers can explain the impact deportation would have on them. Make it personal and real rather than generic.

Attach proof of everything: birth certificates showing your children are U.S. citizens, marriage certificates, tax returns from the past 10 years, pay stubs, medical records, school records, and letters from community organizations or churches. ICE won’t investigate on your behalf, so if you don’t prove it, they won’t believe it.

In 2025, ICE will probably say no, though some offices are more receptive than others. That’s when you go to the immigration judge.

Filing A Motion For Administrative Closure With The Court

When you file a motion for administrative closure with the immigration court, the judge evaluates several factors under the 2024 regulations: whether you’re pursuing other relief that will take time to resolve, whether removal proceedings would waste judicial resources, your length of presence in the U.S., your family ties, and whether you pose a threat to public safety.

If you file a joint motion with ICE, the judge must grant it unless there are unusual reasons not to. Even when ICE opposes, the judge still has authority to grant it based on the regulatory factors after weighing everything and deciding what makes sense, though some judges are more willing to exercise this authority than others.

Consider this scenario: you’re waiting for a U visa after reporting a crime and cooperating with law enforcement, but the certification process takes 18 months. Your immigration case is scheduled for a hearing in 3 months, so you file a motion for administrative closure explaining you’re pursuing a U visa that could give you legal status but you need time. The judge can grant administrative closure even if ICE objects, though approval isn’t guaranteed.

Administrative closure pauses your case by taking it off the court’s active docket. ICE can reopen it later if circumstances change, but for now, deportation proceedings stop. Termination is stronger because the judge dismisses your case entirely – ICE would have to file a completely new Notice to Appear to restart removal proceedings, which makes termination more protective than administrative closure. That said, termination is harder to get than administrative closure.

What Happens After Your Case Closes

Once your case closes, you won’t have court dates or face imminent deportation, but you’re not getting legal status either.

If you entered illegally or overstayed a visa, you’re still undocumented. You can’t travel outside the U.S. and return, can’t work legally unless you have work authorization from another application, and can’t apply for a green card in most situations because you’re still removable.

Think of administrative closure as temporary relief that stops deportation but doesn’t solve your immigration status permanently. You still need to pursue actual legal status if a path exists – marriage to a U.S. citizen with a waiver, asylum, U visa, or whatever applies to your situation.

Some people live for years with closed cases by working off the books, avoiding international travel, and keeping a low profile. It’s not ideal, but it beats deportation and gives you time to pursue permanent solutions.

ICE can reopen your case if you get arrested, if enforcement priorities shift, or if you don’t pursue the relief you claimed you were pursuing. Given current arrest quotas, there’s real risk of reopening, so keeping a clean record and staying off ICE’s radar becomes essential. That said, many administratively closed cases stay closed for years without ICE intervention.

Why You Need An Immigration Attorney For This

Requesting prosecutorial discretion or administrative closure isn’t about filling out a form – you’re making a legal argument for why closing your case serves justice better than deporting you, which requires gathering evidence, drafting persuasive motions, and presenting your case to ICE attorneys or immigration judges who deal with these requests every day.

We’ve handled these cases since the Doyle Memorandum was issued in 2022, through the 2024 regulatory changes, and now in the current enforcement environment. When ICE removed their official guidance from the website, we adapted our approach based on what still gets results with individual OPLA offices. The 2024 regulations created new opportunities for judicial closure that didn’t exist before, and we’ve successfully used them when ICE opposes closure.

Every case is different. Some cases close quickly, others take months of back-and-forth with ICE or the court. Some judges grant administrative closure readily, others require extensive briefing. If you’re facing deportation and you have strong ties to the United States, contact an immigration attorney who handles these cases regularly. We’ve been practicing immigration law for over 40 years.