Attorney General restricts immigration judges’ and BIA’s power to dismiss or terminate removal proceedings
On Sept. 18, 2018, Attorney General (AG) Jefferson Sessions, in two cases he referred to himself, held that immigration judges (IJs) may dismiss or terminate removal proceedings only where the regulations expressly allow or if the charges of removability against a respondent have not been sustained. Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018). Citing his own reasoning in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), a decision he issued earlier this year that restricts IJs’ and Board of Immigration Appeals’ (BIA) authority to control their own dockets, the AG concluded that IJs and the BIA do not possess inherent authority to terminate or dismiss removal proceedings.
Background on Ms. S-O-G- and Ms. F-D-B-’s removal cases
The AG referred to himself two cases that the BIA had already decided, regarding Ms. S-O-G- and Ms. F-D-B-. In the first case, the Department of Homeland Security (DHS) had initiated removal proceedings against Ms. S-O-G- by filing a Notice to Appear (NTA). Ms. S-O-G- conceded removability and indicated that she intended to apply for immigration relief. Later, according to the AG’s opinion, DHS “learned” that Ms. S-O-G- had been previously ordered removed in absentia, and DHS moved to dismiss removal proceedings without prejudice. The IJ granted DHS’s motion, and Ms. S-O-G- appealed to the BIA. The BIA affirmed, citing the regulations that allow DHS to seek dismissal if the NTA was “improvidently issued” or if DHS determines that continuation is no longer in the “best interest of the government.” See 8 CFR §§ 1239.2(c); 239.2(a)(6), (7).
In Ms. F-D-B’s case, the IJ reopened a prior in absentia order. At her subsequent hearing before the IJ, Ms. F-D-B- conceded removability and indicated that she was a beneficiary of an I-130 family-based petition. After Ms. F-D-B-’s family based petition was approved, the IJ administratively closed her case so that she could apply for a provisional waiver, which was also approved. Once the waiver was approved, the IJ re-calendared Ms. F-D-B’s case and then terminated removal proceedings without prejudice so she could consular process. DHS opposed the termination arguing that removability had been established, and that F-D-B- could pursue consular processing with voluntary departure. DHS appealed the IJ’s termination order. The BIA dismissed DHS’s appeal and affirmed the IJ’s order.
The AG’s Reasoning in Matter of S-O-G- & F-D-B-
The AG affirmed the BIA’s decision in Ms. S-O-G-’s case that dismissal of removal proceedings pursuant to 8 CFR § 1239.2(c) was appropriate. In that case, the AG concluded that the IJ and BIA had “applied the appropriate regulatory standard for dismissal” under 8 CFR §§ 239.2(a), 1239.2(c), which allows DHS to move for dismissal in certain specified circumstances including where DHS determines that the NTA was improvidently issued or that it is not in the government’s “best interest” to continue with the removal proceedings. The AG agreed that either of these bases was a sufficient reason for dismissal, because Ms. S-O-G- was already subject to a removal order. Next, the AG vacated the BIA’s decision in Ms. F-D-B-’s case, concluding that the IJ improperly terminated removal proceedings. The AG reasoned that neither the IJ nor the BIA cited a legal basis for the termination and instead terminated merely due to “sympathetic” factors.
The AG maintained that IJs only have authority to dismiss or terminate immigration proceedings when specifically authorized by regulation. See 8 CFR §§ 1239.2(c); 1239.2(f) (allowing IJs to terminate proceedings where naturalization proceedings are pending and where there are humanitarian factors present). Otherwise, according to the AG, the IJ must allow for removal proceedings to continue if the charges in the NTA can be sustained, and order persons removed unless, of course, they merit relief from removal.
For advocates with clients in removal proceedings who have pending applications or petitions before U.S. Citizenship and Immigration Services (USCIS), Matter of S-O-G- & F-D-B- will make it harder for IJs to terminate proceedings unless DHS seeks dismissal under the regulations. The AG’s decision, however, did not abrogate IJs’ authority to terminate removal proceedings in other specific contexts authorized, or even required, by Department of Justice regulations. See, e.g., 8 CFR §§ 1216.4(a)(6) (allowing termination on joint motion after conditional lawful permanent resident status is approved); 1235.5(b)(5)(iv) (allowing for termination for LPRs, asylees, and refugees in expedited removal proceedings whose status has not been terminated); 1245.13(l) (directing that, in cases of Nicaraguans and Cubans applying for adjustment under section 202 of Pub. L. 105-100, removal proceedings “shall be deemed terminated as of the date of approval of the application for adjustment of status by the director”); 1245.15(q) (providing that, in HRIFA adjustment context, administratively closed removal proceedings “shall be deemed terminated as of the date of approval of the application for adjustment of status by the director”); 1240.70(f) (providing that removal proceedings “shall be terminated as a matter of law on the date [asylum or suspension of deportation] is granted” by an asylum officer in matters involving certain ABC class members).
Advocates can still reach out to DHS to request that DHS file an unopposed motion to dismiss proceedings under 8 CFR § 1292.2(c) where it is beneficial to the client to do so. Note that in some contexts, such as situations where the respondent is eligible for U or T nonimmigrant status, DHS regulations expressly contemplate joint motions to terminate without prejudice to allow for USCIS adjudication of the application. See, e.g., 8 CFR §§ 214.11(d)(1)(i), 214.14(c)(1)(i), (f)(2)(i). While administrative closure was an alternative in the past, particularly in cases where the client was pursuing relief with USCIS, the AG’s decision in Matter of Castro-Tum prohibits IJs from administratively closing cases in most situations. Advocates may wish to refer to CLINIC resources on pursuing administrative closure post Castro-Tum. Another option that remains available is seeking continuances from the IJ in order to pursue relief with USCIS. The AG issued a recent decision discussing the standard for granting continuances in this situation, Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), and CLINIC will be issuing a forthcoming practice advisory on this topic.
Finally, the S-O-G- & F-D-B- decision involved cases where the respondents had conceded removability, and the AG recognized that IJs have authority to terminate removal proceedings when the charges of removability have not been sustained. See 8 CFR § 1240.12(c); INA § 240(c)(1)(A). When a respondent does not concede removability and instead denies the allegations and charges, termination is appropriate if DHS cannot meet its burden. An example of this is where criminal convictions do not support grounds for inadmissibility or deportability. Advocates may also wish to make arguments in appropriate cases that termination is required by statute or the Constitution, such as egregious 4th Amendment violations, rather than conceding that IJs’ sole authority to terminate arises where it is expressly stated in a DOJ regulation.