Understanding Deferred Action and Prosecutorial Discretion in Immigration Law



In the realm of immigration law, two important concepts play a significant role in determining the fate of individuals facing deportation or removal proceedings: Deferred Action and Prosecutorial Discretion. These concepts offer avenues for relief and can profoundly impact the lives of immigrants and their families. In this comprehensive guide, we delve into the nuances of Deferred Action and Prosecutorial Discretion, elucidating their definitions, eligibility criteria, application processes, and implications.

What is Deferred Action?

Deferred Action is a discretionary determination by the Department of Homeland Security (DHS) to temporarily postpone the deportation of an individual. It is not a lawful status, visa, or pathway to citizenship. Instead, it offers temporary relief from removal for certain individuals who meet specific criteria outlined by the DHS.

Eligibility for Deferred Action

To qualify for Deferred Action, individuals must demonstrate that they:

  • Arrived in the United States before a certain age and meet other residency requirements.
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States.
  • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Application Process for Deferred Action

Applying for Deferred Action involves submitting various forms and supporting documents to the U.S. Citizenship and Immigration Services (USCIS). The process typically includes:

  1. Completion and submission of Form I-821D, Consideration of Deferred Action for Childhood Arrivals (DACA).
  2. Submission of Form I-765, Application for Employment Authorization, and Form I-765WS, Worksheet, to request an employment authorization document (EAD).
  3. Providing evidence to establish eligibility, such as school records, medical records, or military records.
  4. Paying the required filing fees, although fee waivers may be available for those unable to afford them.

What is Prosecutorial Discretion?

Prosecutorial Discretion refers to the authority vested in immigration officials to decide whether to enforce the immigration laws against a particular individual. It allows immigration authorities to prioritize cases based on various factors, including humanitarian concerns, public safety, and administrative efficiency.

Exercise of Prosecutorial Discretion

Immigration officials may exercise prosecutorial discretion in various contexts, such as:

  • Deciding whether to initiate removal proceedings against an individual.
  • Determining whether to detain or release an individual during removal proceedings.
  • Granting relief from deportation or removal, such as Deferred Action or stays of removal.

Factors Considered in Prosecutorial Discretion

When exercising prosecutorial discretion, immigration officials may consider factors such as:

  • The individual’s length of residence in the United States.
  • Family and community ties in the United States.
  • Pursuit of education or employment opportunities.
  • Existence of serious health conditions or disabilities.
  • Military service or other contributions to the community.
  • Evidence of rehabilitation or good moral character.

Implications of Deferred Action and Prosecutorial Discretion

Understanding Deferred Action and Prosecutorial Discretion is crucial for individuals navigating the complex landscape of immigration law. These mechanisms offer temporary relief and may provide opportunities for individuals to remain in the United States, pursue education and employment, and contribute to their communities.


Deferred Action and Prosecutorial Discretion are vital components of immigration law that can significantly impact the lives of immigrants facing deportation or removal proceedings. By comprehensively understanding these concepts, individuals and their advocates can navigate the immigration system more effectively and pursue avenues for relief and protection.


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