The BIA recently issued a precedential decision in Matter of H. N. Ferreira, 28 IN Dec. 765 (BIA 2023) that addressed how IJs must address unilateral motions to dismiss filed by ICE in I-751 review proceedings pursuant to the regulations. The respondent was a conditional resident who had been placed in removal proceedings after U.S. Citizenship and Immigration Services (USCIS) denied Form I-751 and referred the case to immigration court. ICE moved to dismiss the case after it was unable to locate the noncitizen’s file, to which the noncitizen objected, “contend[ing] that terminating removal proceedings would leave him without an avenue for review of USCIS’ denial of his Form I-751…” Despite the noncitizen’s objection, the IJ granted termination and concluded that the court lacked jurisdiction to interfere with the Department of Homeland Security’s (DHS) prosecutorial discretion decision.

On appeal, the BIA vacated the IJ’s decision to terminate and remanded the case. In doing so, the BIA found that ICE does not have the authority to unilaterally cancel a Notice to Appear once it is filed and instead must move to dismiss proceedings under the regulations. An IJ, in turn, should “adjudicate the motion after considering the underlying facts and circumstances.” Specific to a case referred to the Executive Office of Immigration Review (EOIR) by USCIS following an I-751 denial, the IJ should “consider the respondent’s interest in obtaining review of USCIS’s denial of [the] Form I-751 petition,” given that an IJ review of such a denial is the "sole form of review expressly provided for by law” in such circumstances. Importantly, the BIA found that “[t]he Immigration Judge erred in concluding that he was required to terminate proceedings simply because DHS had moved to do so.”

Implications for Practitioners

Although this case was decided in the specific context of an I-751 petition, practitioners should argue that their clients’ interests in proceeding in immigration court are similarly “significant.” CLINIC has fielded many inquiries from practitioners who have dealt with unilateral motions to dismiss filed by ICE, some even filed on the same day as the individual hearing. These dismissals have arisen as ICE and the immigration courts have attempted to clear so-called “non-priority cases” from the docket in accordance with the prosecutorial discretion goals of the administration.

While CLINIC strongly supports the use of prosecutorial discretion in proceedings, we also know the hardship that many legal services providers experience when these motions to dismiss are last-minute and unwanted. Such motions have presented challenges for respondents who would elect to pursue relief in immigration court rather than have their case terminated (particularly where relief is only available before the EOIR, such as cancellation of removal). They also present challenges for legal service providers who devote hundreds of hours to cases only to see their work undone at the last minute by an IJ granting a unilateral motion to dismiss filed by ICE. CLINIC has raised these issues to the administration, including through comments to a September 2023 proposed rule issued by the Department of Justice (DOJ). CLINIC hopes that DOJ will soon provide more concrete guidance to adjudicators on the importance of considering a noncitizen’s position on an ICE motion to dismiss before granting it.

In the meantime, CLINIC urges practitioners to rely on the reasoning in Matter of H.N. Ferreira when opposing unilateral motions to dismiss filed by ICE. Matter of H.N. Ferreira stands for the proposition that an IJ is not required to terminate proceedings simply because ICE moves to dismiss. It also stands for the proposition that a respondent’s “significant” interest in being in removal proceedings is an important factor for the IJ to consider. Many noncitizens have significant interests in being in removal proceedings outside of the I-751 context. For example, an asylum seeker referred to court by USCIS has an interest in having his or her case reviewed on a de novo basis. A noncitizen may have a significant interest in being in removal proceedings to seek cancellation of removal as that type of relief is not available affirmatively. Practitioners should develop the record as fully as possible and be prepared to appeal an IJ’s dismissal of proceedings over the respondent’s objections. CLINIC affiliates may reach out via Ask the Experts to seek technical assistance on navigating these issues in removal proceedings.