1 USCIS-PM I.2
“Prosecutorial discretion” is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. USCIS, like other law enforcement agencies,[1] has prosecutorial discretion and exercises it every day. In the immigration context, the term applies not only to the decision to issue a Notice to Appear (NTA), but also to a broad range of other discretionary immigration enforcement decisions.
The “favorable exercise of prosecutorial discretion” means a discretionary decision not to assert the full scope of the INA enforcement authority as permitted under the law. The doctrine of prosecutorial discretion applies to enforcement decisions and not to affirmative acts of approval or grants of benefits under the INA or other applicable law that provides requirements for determining if the approval should be given. Simply put, prosecutorial discretion is not a substitute to grant benefits to an alien who is ineligible for that benefit under the INA.
Prosecutorial discretion can never be used to justify any action that is illegal or is not within the authority of the agency and only extends up to the substantive and jurisdictional limits of the law. USCIS’ discretionary authority does not modify or waive any legal requirements that apply to the action itself. Rather, it promotes the efficient and effective enforcement of the immigration laws and the interests of justice.
Exercising prosecutorial discretion does not lessen the agency’s commitment to enforce the INA nor is it an invitation to ignore the law. The Supreme Court “has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”[2]
Prosecutorial discretion and adjudicative discretion are the two broad types of discretion that may be exercised in the context of immigration law.[3] The scope of discretion is defined by what type of discretionary decision is being made. This chapter only discusses the exercise of prosecutorial discretion.
Prosecutorial discretion is exercised when an agency makes an independent decision with respect to enforcing the law and how to proceed with a request. USCIS, along with other DHS agencies, has the authority to exercise prosecutorial discretion related to immigration enforcement actions, including granting deferred action. Officers reviewing requests for deferred action exercise prosecutorial discretion when determining whether to deprioritize the alien from removal proceedings despite being removable.
USCIS retains the sole authority to exercise prosecutorial discretion for matters before USCIS, consistent with applicable laws and policy. USCIS exercises deferred action judiciously and only in compelling circumstances based on an individual case-by-case basis after thorough review by a USCIS officer. USCIS follows laws and regulations, where applicable, for certain benefit requests where USCIS exercises prosecutorial discretion through deferred action.
Deferred action is the formal documenting of a decision to exercise prosecutorial discretion to not pursue removal action or deportation against an alien for a certain period of time.[4] The traditional basis to defer action arises from the Executive Branch’s prosecutorial discretion, including its authority to use its limited resources to prioritize certain cases for enforcement over others.[5] USCIS, through the authority granted by the Secretary of Homeland Security,[6] may exercise a favorable use of prosecutorial discretion to temporarily not enforce the full scope of the INA against an alien through deferred action.
The authority to grant deferred action is extraordinary. USCIS may only grant deferred action judiciously in extraordinary and compelling cases.[7] A demonstration of general hardship alone, common to all aliens facing removal, is insufficient for USCIS to grant deferred action. In other words, aliens must demonstrate extraordinary or compelling circumstances which are non-routine, persuasive, and unique. USCIS’ authority to grant deferred action to removable aliens who are otherwise ineligible for immigration benefits or relief is limited, as Congress expressly enacts the comprehensive federal statutory scheme for the regulation of immigration and naturalization in the INA.
Deferred action is not intended to circumvent the express will of Congress but rather to serve as an administrative remedy of last resort to an alien currently in the United States. As such, all appropriate administrative relief should generally be exhausted before considering deferred action and a USCIS officer is required to review and analyze these other avenues in a deferred action decision. Meaning if an alien is eligible for other relief under the INA, that should generally be pursued prior to considering deferred action. Deferred action is not a permanent solution to an alien’s removability or a mechanism for an alien to remain in the United States indefinitely.
An alien does not have a right to deferred action, unless specifically provided by law or regulation. A grant of deferred action does not confer immigration status, is not an admission to the United States, and does not excuse any past or future periods of unlawful presence or other inadmissibility grounds.[8] A grant of deferred action does not provide a pathway to citizenship, and provides no other substantive rights, other than provided by Congress or regulation.[9] Prosecutorial decisions including deferred action used in enforcement-related situations may appear as if DHS is granting a benefit, such as a grant of “deferred action” or a “stay of removal,” however, these actions are mechanisms for formalizing an exercise of prosecutorial discretion.
[^ 1] See 90 FR 42797 (Sept. 5, 2025) (final rule).
[^ 2] See Heckler v. Chaney,470 U.S. 821, 831 (1985).
[^ 3] See Part E, Adjudications, Chapter 8, Discretionary Analysis, Section B, Overview of Discretion [1 USCIS-PM E.8(B)] for more information on broad types of discretion.
[^ 4] See, for example, Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84 (1999).
[^ 5] See8 CFR. 274a.12(c)(14) (referring to deferred action as “an act of administrative convenience to the government which gives some cases lower priority”).
[^ 6] See INA 103(a).
[^ 7] See Guidance on Deferred Action, DHS Memorandum, issued April 4, 2025.
[^ 8] See Volume 8, Admissibility [8 USCIS-PM] for more information on inadmissibility grounds.
[^ 9] See Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (PDF), issued June 15, 2012.