Chapter 1 - Purpose and Background

A. Purpose

This part describes USCIS policies for exercising prosecutorial discretion and the process for making such decisions, including grants of deferred action. The Immigration and Nationality Act (INA), as amended by the Homeland Security Act of 2002, charges the Secretary of Homeland Security with the administration and enforcement of the INA and all other laws related to the immigration and naturalization of aliens, with limited exception.^[1] USCIS has delegated authority through the Secretary, among other authorities, to exercise prosecutorial discretion on an individual case-by-case basis by granting deferred action to a particular alien who is otherwise removable from the United States.^[2]

B. Background

Congress provides for how aliens may legally enter and remain in this country and under what circumstances the government may grant discretionary relief from removal. The INA, as amended by the Homeland Security Act of 2002, vests the Secretary of Homeland Security with the administration and enforcement of the INA and to control, direct, and supervise all DHS employees who administer and enforce these laws, including exercising prosecutorial discretion in individual cases before DHS.^[3]

Prosecutorial discretion allows DHS, through its components, to make individual case-by-case decisions about whether to pursue, delay, or forego enforcement actions against aliens who are subject to removal under the INA.^[4]

The authority to grant deferred action is ultimately vested in the Secretary of Homeland Security.^[5] Congress explicitly provided for deferred action only in certain limited and unique circumstances.^[6] As with any discretionary decision, there is no bright line test for determining when to favorably exercise prosecutorial discretion. In many cases, because minds reasonably can differ, positive and negative factors may be afforded more or less evidentiary weight and lead the discretionary analysis to no single definitive outcome.

C. Legal Authorities

• INA 103 – Powers and duties of the Secretary, Under Secretary and Attorney General
• INA 242(g) – Exclusive jurisdiction
• INA 204 – Procedure for granting immigrant status
• Delegation to the Bureau of Citizenship and Immigration Services, Delegation 0150.1, signed June 5, 2003 (effective March 1, 2003)
• Delegation to Director, United States Citizenship and Immigration Services, to Order Expedited Removal and to Enforce Immigration Laws (PDF, 137.07 KB), Delegation 15006, signed May 2, 2025 

Footnotes

[^ 1] See INA 103(a). See Pub. L. 107-296 (PDF), 116 Stat. 2135 (November 25, 2002).

[^ 2] See Delegation to the Bureau of Citizenship and Immigration Services​, Delegation 0150.1, signed June 5, 2003 (effective March 1, 2003) regarding USCIS’ authority to place aliens in removal proceedings, cancel jurisdiction, grant deferred action, and similar authorities. See Delegation to Director, United States Citizenship and Immigration Services, to Order Expedited Removal and to Enforce Immigration Laws (PDF, 137.07 KB), Delegation 15006, signed May 2, 2025.

[^ 3] See INA 103(a).

[^ 4] See Heckler V. Chaney, 470 U.S. 821, 831 (1985) (The Supreme Court has recognized “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.”).

[^ 5] See INA 103(a).

[^ 6] See the National Defense Authorization Act for Fiscal Year 2004, Pub. L. 108-136 (PDF), (November 24, 2003). See INA 204(a)(1)(D)(i)(II) and INA 204(a)(1)(D)(i)(IV).