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Prosecutorial discretion, dismissal and termination of proceedingsProsecutorial Discretion, Dismissal, Administrative Closure and Termination

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

Read this first: ① Prosecutorial discretion is the government's discretion, not a right of the respondent; since 2025, the earlier enforcement-priority policies have been rescinded, and DHS agrees to dismissal or administrative closure far less often. ② Dismissal does not mean obtaining status; after a case is dismissed, some people may be arrested near the courthouse and placed into expedited removal. ③ When the DHS attorney makes an oral motion to dismiss in court, you can state your position through your attorney and ask for a written motion and time to respond; do not agree on the spot without an evaluation. ④ Cases that were administratively closed years ago may be put back on the calendar at DHS's request, so make sure your address is current and do not miss any notice.

"Prosecutorial discretion" (PD) refers to an enforcement agency deciding, within the limits the law allows, against whom and to what extent to enforce the law. In immigration court cases, the government is represented by the Office of the Principal Legal Advisor (OPLA) of Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security (DHS), commonly called the "government attorney" or the "prosecution." OPLA can decide whether to issue a Notice to Appear, which charges to bring, whether to agree to a particular form of relief or to voluntary departure, whether to appeal, and whether to agree to dismissal or administrative closure.

Many people have heard about "getting the government attorney to agree to dismiss the case" and think of it as a shortcut to ending the case and staying in the United States. In reality, dismissal, administrative closure and termination have different legal effects, and a great deal changed in 2025–2026: earlier policies were rescinded, the regulations on administrative closure were vacated by a court, and in some situations dismissal has instead become a prelude to expedited removal. This page was verified as of October 11, 2026, to help you understand the current landscape.

First, distinguish four concepts

Concept	Who requests / who decides	Effect	Current status (as of October 2026)
Dismissal	DHS moves under 8 CFR 1239.2(c); the judge decides whether to grant it	Proceedings end with no removal order, but no status is granted; DHS can issue a new Notice to Appear later	DHS still uses it heavily, often to move people into expedited removal; the judge has discretion in handling oral motions
Termination	Motion by the respondent or DHS; the judge decides	Proceedings end with no removal order; in some situations termination is legally required (for example, the charges are not sustained), in others it is discretionary	Whether the termination provisions of the 2024 rule were vacated along with that rule is disputed; case-law grounds for termination are still being cited
Administrative closure	Motion by the respondent or DHS; the judge or the BIA decides	The case is temporarily removed from the calendar, with no decision and no status; either party can move to recalendar	The 2024 rule has been vacated by a court, BIA case law has tightened sharply, and many closed cases are the subject of motions to recalendar
Continuance	Requested by the respondent or DHS; the judge decides	The hearing is postponed and the case remains ongoing	"Good cause" must be shown; continuances based on speculative relief are usually not granted

How prosecutorial discretion policy has evolved

Prosecutorial discretion has a long history in immigration enforcement, and every administration has set enforcement priorities by memorandum. The steps most relevant today are these:

September 30, 2021: Then-Secretary of Homeland Security Mayorkas issued the Guidelines for the Enforcement of Civil Immigration Law, focusing enforcement on threats to national security, public safety and recent border crossers, and requiring a weighing of positive and negative factors for everyone else.
April 3, 2022: ICE Principal Legal Advisor Doyle issued OPLA enforcement guidance (commonly called the Doyle memo), directing government attorneys to consider dismissal, administrative closure, agreeing to relief and similar steps for non-priority cases in court.
June 2022: The U.S. District Court for the Southern District of Texas vacated the Mayorkas guidelines; on June 23, 2023, the Supreme Court reversed that decision in United States v. Texas on the ground that the states lacked standing, and the guidelines were then reinstated.
January 20, 2025: Executive Order 14159, "Protecting the American People Against Invasion," revoked the prior administration's civil enforcement priorities and directed DHS to rescind the memos and policies based on them. Since then, neither the Mayorkas guidelines nor the Doyle memo has been in effect. You may still find old ICE pages and FAQs about the Doyle memo online; they cannot be relied on as current policy.
January–February 2025: The EOIR Acting Director issued PM 25-09 (January 29) and PM 25-16 (February 3), rescinding earlier EOIR policy documents that had directed judges to consider DHS enforcement priorities and prosecutorial discretion.

The current situation: prosecutorial discretion still exists as an inherent power of the government, and you can still ask, through your attorney, in writing for the local OPLA office to consider your circumstances; but there is no current policy requiring government attorneys to show leniency toward "non-priority" cases, and whether to agree is entirely up to DHS. Since 2025, DHS's overall approach has been to push cases toward a merits hearing or a quick conclusion, not to let them sit.

Dismissal by DHS

Once a Notice to Appear has been filed with the court, DHS cannot withdraw it on its own; it can only move the judge to dismiss. Under 8 CFR 1239.2(c), DHS can move to dismiss on the grounds listed in 8 CFR 239.2(a), for example that the Notice to Appear was "improvidently issued," or that circumstances have changed such that continuing is no longer in the government's interest. The judge must rule on the motion rather than grant it automatically (the BIA established this in Matter of G-N-C- (1998)).

The effect of dismissal is that the case ends without a removal order, but you do not obtain any status as a result; you remain in your previous immigration situation. Dismissal is usually "without prejudice," meaning DHS can issue a new Notice to Appear later or, where the law allows, use a different procedure instead (such as expedited removal).

In the past, dismissal was often used as a form of prosecutorial discretion: for people who had lived in the United States for many years, had families and had no criminal record, DHS would agree to dismiss so that they could "go back to where they were," sometimes so that they could apply to USCIS for another status. Under current policy, this has become rare.

A practice that emerged in 2025: dismissal in court, followed by arrest and expedited removal

Starting January 21, 2025, DHS expanded expedited removal nationwide to people who entered without authorization and cannot show that they have been continuously present in the United States for 2 years; at the same time, DHS directed a review of people who entered on parole, to terminate their parole or court proceedings where appropriate and use expedited removal instead. Expedited removal is decided by immigration officers and does not go before an immigration judge, unless the person expresses a fear of return and passes a "credible fear" interview.

Since May 2025, a practice has appeared in many places: the government attorney makes an oral motion to dismiss at a master calendar hearing, the judge grants it on the spot, and ICE officers then arrest the person inside or near the courthouse and place them in expedited removal. The related developments and litigation (verified as of October 11, 2026):

Oral motions to dismiss: On May 30, 2025, an EOIR acting regional deputy chief immigration judge instructed judges by internal email that they could grant DHS motions to dismiss orally in court without giving the respondent the usual response period. On September 12, 2025, the U.S. District Court for the Southern District of New York stayed that email as applied in Manhattan and the Bronx; on September 23, 2025, EOIR issued PM 25-51 withdrawing the email, while reaffirming that judges already have the authority to allow oral motions and set response deadlines as they see fit. In other words, oral dismissal has not been prohibited; what matters is how the judge exercises discretion.
Courthouse arrests: In June 2026, in the Pablo Sequen v. Albarran class action, the U.S. District Court for the Northern District of California vacated several 2025 ICE and EOIR policies on arrests at immigration courts as "arbitrary and capricious" under the Administrative Procedure Act, reportedly with nationwide effect. In African Communities Together v. Lyons, the U.S. District Court for the Southern District of New York (Judge Castel) first barred ICE in May 2026 from making such arrests at three immigration courts in Manhattan, and then, between late September and early October 2026, issued a final ruling holding ICE's immigration courthouse arrest policy arbitrary and capricious and restoring the prior policy that allowed enforcement at immigration courts only in limited circumstances; reports differ on the scope of that ruling. Whether the government will appeal, and how the appeals courts will handle it, remains to be seen.
The expansion of expedited removal itself: In the Make the Road New York case, the U.S. Court of Appeals for the D.C. Circuit on June 23, 2026 vacated the district court's stay of the nationwide expansion of expedited removal, and on July 17, 2026 allowed the expansion policy to take effect immediately; in the CHIRLA case, which concerns people who entered on parole, the same court on August 11, 2026 also vacated the district court's stay. The related litigation is ongoing.

The bottom line: courthouse arrests are currently limited by court rulings, but the expedited removal expansion policy is still being enforced, and the risk of being moved into expedited removal after dismissal has not gone away. Those at highest risk: people who were not inspected at entry and cannot document 2 years of continuous presence in the United States; and people who entered on parole and whom DHS treats as "arriving aliens." Gather the documents that prove how long you have been in the United States (leases, bills, tax returns, medical and school records, etc.) so you can provide them quickly if needed. If you are detained, you have the right to remain silent and to ask to contact a lawyer; do not sign documents you do not understand, and if you are afraid to return, say so clearly.

Administrative closure: from Cruz-Valdez to the 2026 court judgment

Administrative closure means temporarily taking a case off the court's calendar. Its status has gone back and forth several times:

2012: In Matter of Avetisyan, the BIA recognized that judges and the BIA could administratively close cases even over one party's objection, and listed the factors to consider.
2018: In Matter of Castro-Tum, the Attorney General held that judges have no general authority to administratively close cases.
2021: In Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), the Attorney General overruled Castro-Tum and restored the standard of Avetisyan and related precedents.
2024: EOIR issued the final rule "Efficient Case and Docket Management in Immigration Proceedings" (effective July 29, 2024), writing administrative closure into 8 CFR 1003.18(c) (judges) and 1003.1(l) (BIA), and termination into 1003.18(d) and 1003.1(m).
2025: In April, EOIR rescinded earlier guidance encouraging administrative closure with PM 25-29; in Matter of B-N-K- (2025), the BIA held that the most important consideration is whether there is reason for the case to proceed to the merits, and that administrative closure should be tied to an outcome foreseeable within a "reasonably short" time. Since May 2025, DHS has moved nationwide to recalendar a large number of cases that had been administratively closed for years.
February 27, 2026: In Matter of Ibarra-Vega, 29 I&N Dec. 476 (BIA 2026), the BIA held that the "reasonably short" standard also applies to recalendaring, that closure of more than 6 months is presumed unreasonable (absent exceptional circumstances), and that administrative closure cannot become de facto relief.
June 22, 2026: In State of Texas v. U.S. Department of Justice (No. 7:26-cv-00070), the U.S. District Court for the Northern District of Texas entered a consent judgment on the joint motion of Texas and the Department of Justice, vacating the 2024 rule (Texas's complaint targeted only administrative closure, but the judgment's wording is widely understood to vacate the entire rule), permanently enjoining the Department of Justice from enforcing the rule, and barring it from issuing a similar administrative closure rule without clear statutory authority. The Department of Justice waived appeal. Reportedly, several cities and a legal services organization that sought to intervene to defend the rule were denied and have appealed to the Fifth Circuit.

The practical situation today: DHS and many judges treat the entire 2024 rule as vacated. Cruz-Valdez has not been formally overruled, and some federal courts of appeals (including the Seventh Circuit, which covers Illinois, in Meza Morales v. Barr, 2020) have also held that judges have administrative closure authority under 8 CFR 1003.10(b); the Texas judgment did not address those precedents, so there is still room to argue for it in individual cases, but the chances have clearly declined. Reportedly, the Department of Justice is also preparing a new related rule, the content of which has not been published. If your case was administratively closed years ago, do not assume the case is over: make sure the court and DHS have your current address (file Form EOIR-33 with the court), check your case status regularly, and when you receive a motion to recalendar, have an attorney promptly evaluate whether to agree, oppose, or use the opportunity to screen again for new relief.

How termination of proceedings differs from dismissal

Dismissal is DHS voluntarily abandoning the current proceedings; termination is the judge ending the proceedings on legal grounds. Common grounds for termination include:

The charges are not sustained: DHS must first prove that the respondent is a noncitizen; for a person who has been admitted, DHS must also prove removability by clear and convincing evidence (INA 240(c)(3)) (a person who has not been admitted must instead prove lawful entry, INA 240(c)(2)). When DHS cannot carry its burden, the judge must terminate. A materially defective Notice to Appear, or charges that do not match the facts, may also be grounds for termination.
Status has been obtained: for example, the respondent obtained a green card or naturalized through another avenue while proceedings were pending.
Termination to apply for relief with USCIS: In Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022), the Attorney General restored judges' authority to terminate proceedings in limited situations, for example when the respondent needs to leave the United States to obtain a visa, or needs proceedings terminated in order to apply to USCIS for a particular status.

The 2024 rule had written situations of "mandatory termination" and "discretionary termination" into 8 CFR 1003.18(d). After that rule was vacated, whether the termination provisions were also invalidated is disputed: some bar groups argue that the claims and judgment in the Texas case concerned only administrative closure, and that the termination provisions remain in effect under the rule's severability clause; but many judges and DHS treat them as invalidated as well. Even under those provisions, the BIA has emphasized that discretionary termination requires weighing all the factors: speculation that you may obtain status in the future is not enough (Matter of Roque-Izada, 29 I&N Dec. 106 (BIA 2025)), and a single factor such as DACA is not enough either (Matter of Santiago-Santiago, 29 I&N Dec. 589 (BIA 2026)). In addition, several BIA precedents from 2025–2026 (such as Matter of Tepec-Garcia, Matter of Bolivar-Bolivar and Matter of Lopez-Orellana) addressed whether to terminate or to proceed in absentia when one party fails to appear: when DHS did not appear and had not previously filed evidence of removability, it was not error for the judge to terminate proceedings without prejudice; but as long as the record already establishes removability (or alienage) and the respondent received proper notice, the judge generally should proceed in absentia rather than terminate.

When to seek dismissal or termination, and when it may hurt you

Situations where it may be worth pursuing

DHS's charges themselves are flawed, for example the evidence is insufficient or the Notice to Appear is defective (you should seek termination, not just dismissal);
You have obtained, or are about to obtain, status through another avenue that can only be processed by USCIS or at a consulate abroad, for example a person classified as an arriving alien who can file an adjustment application only with USCIS (see Relief options overview);
You were inspected at entry and are not subject to expedited removal, you have a long, stable life and family in the United States, and you have no relief you can pursue in court, so ending the proceedings is better for you;
DHS has clearly said it agrees and can confirm that it will not take other enforcement action immediately after dismissal (in the current environment, such confirmation is often hard to obtain).

Situations where it may hurt you and you should be cautious or oppose it

You have relief that can only be sought in immigration court, such as cancellation of removal for non-green card holders (EOIR-42B) or for green card holders; after dismissal you lose the forum in which to apply;
You have an asylum application pending in court: once the case is dismissed, the I-589 is no longer pending in court and usually must be filed separately with USCIS, which may raise issues such as the one-year deadline and work authorization and must be evaluated case by case;
You entered without inspection and cannot prove 2 years of continuous presence in the U.S., or you entered on parole: after dismissal you may be moved into expedited removal, which offers far fewer procedural protections than immigration court;
Your case is well prepared and the individual hearing is coming up soon, and dismissal would only send you back to having neither status nor a legal proceeding.

What to do when DHS moves to dismiss in court

Have your attorney state your position clearly in court. If you oppose, you can ask DHS to file a written motion and for time to respond (8 CFR 1003.23(a) provides that pre-hearing motions should generally be in writing unless the judge permits otherwise), explain the relief you have pending or could seek and the harm dismissal would cause, and ask the judge to note your objection on the record to preserve it for appeal. Whether the judge ultimately grants the motion is within the judge's discretion; an unfavorable decision can be appealed to the BIA within 30 days (see BIA appeals). If you are later detained and are afraid to return, say so clearly and contact a lawyer as soon as possible (see Expedited removal and Detention and bond).

How we can help

Obtain your Notice to Appear, entry records and court file, and determine whether there are legal issues on which to seek termination;
Evaluate your risk of being moved into expedited removal, and what dismissal, termination and continuing the case would each mean for you;
Communicate with the local OPLA office at the right time, submitting a written request and evidence;
File written responses or objections to DHS motions to dismiss or recalendar, and preserve your appeal rights;
Screen old, administratively closed cases again for relief that may be available.

We do not promise that DHS will agree, nor do we promise the outcome of the judge's decision.

Frequently asked questions

If the government attorney agrees to dismiss my case, am I safe?

Not necessarily. Dismissal only ends this court proceeding; you do not obtain status as a result. DHS can bring a new case later, and people who were not inspected at entry and have been in the U.S. for less than 2 years, or who entered on parole, may also be moved into expedited removal. Evaluate these risks before agreeing to dismissal.

Can I still request prosecutorial discretion (PD) now?

You can submit a written request through your attorney to the local OPLA office, explaining your situation with supporting evidence, but there is currently no policy requiring government attorneys to give priority consideration, and whether to agree is entirely up to DHS. The 2021 Mayorkas guidelines and the 2022 Doyle memo ceased to be in effect in 2025.

My case was administratively closed ten years ago. Does that still count?

The case still exists; it is just temporarily off the calendar. Since 2025, DHS has moved to recalendar a large number of such cases, and a June 2026 court judgment vacated the rule on administrative closure. Make sure the court has your current address, check your case status, and have an attorney evaluate promptly once you receive a notice.

What is the difference between dismissal and termination?

Dismissal is DHS moving, on grounds listed in the regulations, to abandon the current proceedings; termination is the judge ending the proceedings on legal grounds, for example because DHS cannot prove its charges or you have obtained status. Neither leaves a removal order, but termination often indicates that the government's charges themselves were flawed; neither one gives you status.

Will ICE arrest me on the spot when I go to immigration court?

Between June and early October 2026, the federal district courts in the Northern District of California and the Southern District of New York each vacated ICE's 2025 immigration courthouse arrest policy and restored the earlier limits (the scope depends on the court rulings and the latest enforcement practice), but the government may appeal and enforcement practices may change. Whatever happens, do not skip your hearing out of fear: missing it leads to an in absentia removal order, with more serious consequences. Talk with your attorney to prepare before your hearing.

The judge granted dismissal in court. Can I appeal?

You can appeal to the BIA within the legal deadline (currently 30 days), but your situation and risks during the appeal must be evaluated specifically by an attorney. If you have already been detained and placed in expedited removal, contact a lawyer as soon as possible and say whether you are afraid to return.