Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018): Reaffirming and Clarifying Limits on Dismissing/Terminating Proceedings

 

Introduction: Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018)

On September 18, 2018, Attorney General Jeff Sessions issued a published decision deciding two cases in Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) [PDF version]. The Attorney General held that, consistent with his recent published decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version], immigration judges have no inherent authority, that is not specifically provided for in the Attorney General regulations, to terminate or dismiss removal proceedings. He also reiterated his conclusion from Matter of Castro-Tum that the regulation at 8 C.F.R. 1240.1(a)(1)(iv), which gives immigration judges general authority to “take any other action consistent with applicable law and regulations as may be appropriate,” does not give immigration judges additional authority to dismiss removal proceedings beyond what is specifically set forth in the regulations. Finally, the Attorney General instructed the Board of Immigration Appeals (BIA) to “recognize and maintain the distinction between a dismissal under [8 C.F.R. 1329.2(c)] and a termination under [8 C.F.R. 1329.2(f)].

In this article, we will examine the Attorney General's new decision in Matter of S-O-G- & F-D-B- and how it follows from his prior decision in Matter of Castro-Tum, as well as what the decision means going forward for respondents in immigration removal proceedings. To read about Matter of Castro-Tum, please see our growing article index on the subject, which includes our Matter of Castro-Tum articles and related cases and decisions [see index].

Attorney General's Referral: 27 I&N Dec. 462-63

Attorney General Sessions invoked 8 C.F.R. 1003.1(h)(1)(i) to direct the BIA to refer two of its decisions — Matter of S-O-G- and Matter of F-D-B- — to himself for review. For reasons that we will examine in this article, Attorney General Sessions affirmed the Board's decision in Matter of S-O-G- and vacated the Board's decision in Matter of F-D-B-. In accordance with the vacature of Matter of F-D-B-, the Attorney General remanded that decision to the immigration judge for further proceedings consistent with his opinion.

Both Matter of S-O-G- and Matter of F-D-B- concerned appeals where the Board considered the order of an immigration judge to end removal proceedings. In one of the cases, the motion to dismiss proceedings had been filed by the Department of Homeland Security (DHS), whereas in the other case, the motion to terminate proceedings was filed by the respondent. In Matter of S-O-G-, “the Board held that the immigration judge correctly concluded proceedings after finding the regulatory standard for 'termination' had been met.” In Matter of F-D-B-, “the Board held that, '[u]nder the particular facts and circumstances of [the] case,' the immigration court had 'appropriat[ly]' invoked its crowded docket and its 'discretion' to terminate removal proceedings…” (Citation omitted.)

The Attorney General decided to review the cases in order “to resolve the division of authority, correct legal error, and confirm the proper legal standard for dismissal or termination of removal proceedings.”

In many cases where the Attorney General has decided to review a case, he has requested additional briefing. For example, see Attorney General Sessions' referrals in Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018) [PDF version] [see article] and Matter of L-A-B-R-, 27 I&N Dec. 245 (A.G. 2018) [PDF version] [see article]. However, in the instant cases, the Attorney General determined that additional briefing was not necessary “[b]ecause the relevant regulation is clear…”

Factual and Procedural History of Matter of S-O-G-: 27 I&N Dec. at 463-64

The respondent in Matter of S-O-G- was a native and citizen of Mexico. The DHS certified removal proceedings against S-O-G- by a Notice to Appear dated March 15, 2015. S-O-G- was charged as being removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA).

In removal proceedings, S-O-G- conceded that she was removable and indicated that she would apply for relief from removal. However, she ultimately did not seek any form of relief before the immigration judge.

The DHS subsequently learned that S-O-G- had been ordered removed in absentia on July 29, 2002. For this reason, the DHS moved “to dismiss the case” without prejudice. The immigration judge granted the DHS's motion, referring to it as a “motion for termination of these proceedings.” (Citation omitted.) The reason for the termination was because the respondent was already subject to a removal order — the 2002 in absentia order. The effect of the decision to terminate proceedings was that it denied S-O-G- the opportunity to apply for relief from removal.

S-O-G- appealed from the immigration judge's decision to the BIA, both “challenging the DHS's reliance on its prosecutorial discretion and arguing that the termination violated her due process right to apply to the immigration judge for relief or protection from removal.” However, the Board affirmed the immigration judge's decision to terminate proceedings, finding that the DHS indeed did have prosecutorial discretion to seek dismissal of proceedings. The Board specifically found that the DHS's motion was explicitly permitted under the governing regulations. It also rejected S-O-G-'s argument that the order dismiss proceedings had violated her due process rights.

Factual and Procedural History of Matter of F-D-B-: 27 I&N Dec. at 464-65

The respondent in Matter of F-D-B- was a citizen of Brazil. She had entered the United States illegally in 2004. Shortly thereafter, the DHS placed F-D-B- in removal proceedings, charging her as being removable under section 212(a)(6)(A)(i) of the INA.

F-D-B- failed to appear for her removal proceedings in 2004. Accordingly, the immigration judge ordered her removed in absentia. She was not removed, however, and on December 9, 2013, F-D-B- filed a motion to reopen proceedings and rescind her in absentia order. This motion was unopposed and granted by the immigration judge.

After reopening proceedings, F-D-B- conceded that she was removable. However, she had obtained a visa as an alien relative of a U.S. citizen. Based on her having obtained a visa, her case was administratively closed in 2016 pending the adjudication of her application for a provisional unlawful presence waiver.

F-D-B- obtained a provisional unlawful presence waiver, and her case was recalendared before the immigration judge. On December 14, 2017, F-D-B- moved to terminate the removal proceedings and stated that she intended to complete her consular processing for an immigrant visa while abroad. The DHS opposed this motion on the basis that her removability had been established. The DHS argued that F-D-B- should seek voluntary departure or relief from removal on some other basis. The immigration judge, however, granted F-D-B-'s motion and terminated proceedings without prejudice.

In describing the decision, the Attorney General explained that “[t]he immigration judge did not dispute that F-D-B- had no legal right to remain in the United States; that her voluntary departure would end the removal proceeding; and that she could apply at a United States consulate in Brazil to obtain an immigrant visa and return.” Despite these findings, the immigration judge terminated proceedings, stating that there appeared to be “no apparent reason why this case should remain on the court['s] busy docket when she is simply waiting for an interview abroad…” (Internal citation omitted.) The Attorney General explained that this allowed her to remain in the United States without legal authorization while awaiting her consular interview in Brazil.

The DHS appealed from the decision. However, on July 18, 2018, the Board affirmed the immigration judge's order. The Board cited to F-D-B-'s concern that “voluntary departure could result in the revocation of her provisional waiver or … an additional ground of inadmissibility that cannot be waived by the provisional waiver.” (Internal citation omitted.) In light of these facts and circumstances, the Board found that the immigration judge's decision was appropriate.

General Statutory and Regulatory Analysis: 27 I&N Dec. 465-67

The Attorney General began by explaining that “[t]he INA vests DHS with the exclusive authority to place aliens in removal proceedings,” citing to Matter of Castro-Tum, 27 I&N Dec. at 289 [see article]. Removal proceedings are initiated by the issuance of a Notice to Appear, defined in section 239(a) of the INA and through 8 C.F.R. 1003.14(a). Under 8 C.F.R. 239.2(a), the “DHS may unilaterally cancel a Notice to Appear under certain enumerated circumstances before jurisdiction vests with the immigration judge.”

In the two cases under review by Attorney General Sessions, jurisdiction had already vested with the immigration judge prior to the cessation of removal proceedings. He explained that once jurisdiction vests, “the statutory power to supervise immigration proceedings resides with the Attorney General,” citing to section 103(a)(1), (g) of the INA. Here, it is important to reiterate that the immigration judges and the BIA, which are components of the Department of Justice (DOJ), exercise authority delegated by the Attorney General. In Matter of Castro-Tum, 27 I&N Dec. at 283 [see section], Attorney General Sessions held that immigration judges may “exercise only the authority provided by statute or delegated by the Attorney General.” He further explained that “[t]his is particularly so in the context of dismissal and termination, dispositions that implicate both the carefully defined jurisdictional scheme set forth by the INA and the inherent prosecutorial discretion of DHS.” In Matter of Roussis, 18 I&N Dec. 256, 257-58 (BIA 1982) [PDF version] [see article], the BIA held that immigration judges “may not simply cede their jurisdiction 'when practical and equitable considerations dictate.'”

In Matter of J-A-B- & I-J-V-A-, 27 I&N Dc. 168, 169 (BIA 2017) [PDF version] [see article], the Board quoted from Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012) [PDF version] [see article] in explaining that an immigration judge may only terminate removal proceedings “when the DHS cannot sustain the charges [of removability] or in other specific circumstances consistent with the law and applicable regulations.”

The Attorney General explained that as relevant in the instant cases, under 8 C.F.R. 239.2(a)(6)-(7), 1239.2(c), an immigration judge may dismiss proceedings on motion of DHS under the following circumstances:

“The notice to appear was improvidently issued”; or
The “[c]ircumstances of the case changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government.”

Additionally, under the foregoing regulations, an immigration judge may also terminate proceedings “to permit the alien to proceed to a final hearing on a pending application or petition for naturalization when the alien has established prima facie eligibility for naturalization and when the matter involves exceptionally appealing or humanitarian factors…” However, under 8 C.F.R. 1239.2(f), “in every other case, the removal hearing shall be completed as promptly as possible.” There are limited other circumstances in which proceedings may be terminated after they began, which the Attorney General outlines at 27 I&N Dec. at 466 n.1, but they are not relevant to the instant cases. You may see the footnote below:

The Attorney General explained that outside of the scenarios set forth above, “the relevant statutes and regulations do not give immigration judges the discretionary authority to dismiss or terminate removal proceedings after those proceedings have begun.” The Attorney General specifically stated that 8 C.F.R. 1240.1(a)(1)(iv), which gives immigration judges general authority to “take any action consistent with applicable law and regulations as may be appropriate,” is “no exception” to the rule. In Matter of Castro-Tum, 27 I&N Dec. at 285, the Attorney General held that this provision “does not permit the immigration judge to suspend indefinitely a respondent's removal proceedings…” (Quote describes Matter of Castro-Tum holding) [see section]. The Attorney General reasoned that reading 8 C.F.R. 1240.1(a)(1)(iv) as allowing immigration judges to suspend proceedings indefinitely “would both exceed the authorized bases for dismissal or termination in the regulations and conflict with the limited authority to dismiss or terminate removal proceedings under 8 C.F.R. 1239.2.” He also cited to section 240(c)(1)(A) of the INA, which requires immigration judges to “decide whether an alien is removable from the United States” at the conclusion of removal proceedings. The Attorney General stated that the implementing regulations “give enforcement officials, not immigration judges, general discretionary authority to cancel a Notice to Appear before removal proceedings commence or to move for the dismissal of removal proceedings after they have begun.” Here, he cited to 8 C.F.R. 1239.2(a), (c), and 1239.1.

Attorney General Affirms Decision in Matter of S-O-G-: 27 I&N Dec. at 467

In Matter of S-O-G-, both the decision of the immigration judge and the decision of the Board to affirm described the DHS's motion as one to “terminate” removal proceedings, which would be in line with the language employed by 8 C.F.R. 1239.2(f). However, the Attorney General explained that “the record indicates that the parties understood the motion to be one to dismiss [under] 8 C.F.R. 1239.2(c) and 8 C.F.R. 239.2(a).”

While noting that “dismissal” and “termination” have distinct meanings and requirements under the immigration regulations, the Attorney General explained that “they are similar concepts in the context of concluding removal proceedings, and it is not uncommon for immigration judges and the Board to use them interchangeably or to conflate them under a common heading of 'termination.'”

Going forward, the Attorney General instructed immigration judges and the Board to “recognize and maintain the distinction between dismissal and termination…” He provided this guidance in order “to avoid confusion.”

Notwithstanding the immigration judge and Board erroneously using the term “terminate” instead of “dismiss,” the Attorney General opted to “proceed … upon the parties' understanding that the DHS had moved to dismiss.” In a footnote, the Attorney General explained that “[t]o the extent the immigration judge or the Board erred by invoking incorrect terminology, that error was harmless.” This is because the evidence on record established clearly that the immigration judge and the Board correctly applied the legal standard for dismissal set forth in 8 C.F.R. 1239.2(c), and the Board cited to that regulation even while using the term “termination.”

Attorney General Sessions explained that “[t]he immigration judge granted the DHS's motion because S-O-G- was already subject to a removal order, a fact that DHS did not know when it served the Notice to Appear.” On appeal, the Board concluded that dismissal was appropriate on either of the following grounds (paraphrased):

1. “[T]he subsequent Notice to Appear was improvidently issued because similar removal proceedings had already concluded” (8 C.F.R. 239.2(a)(6) or (2)); or
2. “[T]he DHS had demonstrated that moving forward in this proceeding, duplicating its previous efforts, was not in the best interests of the Government” (8 C.F.R. 239.2(a)(7)).

Attorney General Sessions agreed with the Board that either of the two suggested grounds of dismissal were sufficient to affirm the immigration judge's decision. For this reason, the Attorney General affirmed the Board's decision in Matter of S-O-G-.

Attorney General Vacates Decision in Matter of F-D-B-: 27 I&N Dec. at 467-68

Unlike Matter of S-O-G-, wherein the immigration judge identified a regulatory basis for terminating removal proceedings, the Attorney General found that the immigration judge in Matter of F-D-B- had done no such thing. Instead, the immigration judge only referenced the facts of the case, the court's “busy docket,” and her own discretion in terminating the removal proceedings. Whereas the Board in Matter of S-O-G- identified multiple regulatory bases for terminating removal proceedings, the Board in Matter of F-D-B- identified none. In Matter of F-D-B-, the Board relied solely on “the particular facts and circumstances of [the] case” to support affirming the immigration judge's decision.

In Matter of Castro-Tum, Attorney General Sessions made clear that immigration judges lack inherent authority to terminate removal proceedings. In the instant case, he stated that this point holds “even though a particular case may pose sympathetic circumstances.” He reiterated that the authority to terminate proceedings, found in 8 C.F.R. 1239.2(f), “is specific and circumscribed.”

The Attorney General stated that immigration judges do have the authority to terminate under circumstances specifically set forth in the regulations, such as the examples discussed in the portions of the decision dealing with Matter of S-O-G- [see section]. In addition to 8 C.F.R. 1239.2, the Attorney General cited to 8 C.F.R. 1240.12(c) and Matter of Sanchez-Herbert, 26 I&N Dec. at 44 to note that immigration judges may terminate proceedings when the DHS fails to meet its burden for establishing that the respondent is removable as charged. The Attorney General reiterated that “the authority to terminate proceedings is not a free-floating power an immigration judge may invoke whenever he or she believes that a case no longer merits space on the docket.”

Regarding the instant case, the Attorney General concluded that because neither the opinion of the immigration judge nor that of the Board in Matter of F-D-B- “purport[ed] to exercise any specific regulatory or delegated authority to terminate, and no such authority is apparent in the record,” the immigration judge's decision “cannot be sustained on appeal.” For this reason, the Attorney General vacated the Board's decision in Matter of F-D-B- and remanded the record to the immigration judge for further proceedings consistent with his opinion.

Question About Board's Authority to Terminate Proceedings Under 8 C.F.R. 1239.2(f): 27 I&N Dec. at 468 n.3

In a footnote, Attorney General Sessions alluded to an additional question that was outside the scope of the instant case. He stated that “[t]here is … reason to doubt whether the Board [in addition to immigration judges] possesses the authority to terminate removal proceedings [under] [8 C.F.R.] 1239.2(f) given the plain text of that regulation.” Here, he noted that the regulation states that “[a]n immigration judge may terminate removal proceedings…” (Emphasis added in the decision.) However, the Attorney General stated that “[t]his question is beyond the scope of this opinion, and I do not address it here.” It will be worth watching whether the Attorney General opts to address this specific question at a later date. In any event, this footnote may signal to the Board that he is not amenable to the idea that the Board may terminate proceedings under 8 C.F.R. 1239.2(f), even if the footnote is not binding.

Conclusion

Matter of S-O-G- & F-D-B- further cements the Attorney General's decision in Matter of Castro-Tum to severely curtail the authority of immigration judges and the BIA to terminate or dismiss removal proceedings. In a sense, the Attorney General reviewed two separate cases to clarify the scope of the new rules. Going forward, he has made it clear that immigration judges may only dismiss or terminate proceedings on grounds explicitly set forth in the applicable regulations. He also reminded immigration judges and the Board to distinguish between the terms “dismissal” and “termination,” which have distinct meanings under law. However, his decision in Matter of S-O-G- also made clear that a failure to distinguish between the terms constitutes “harmless error” if the proper legal standard was applied in the decision.

One noteworthy aspect of the decision is that the Attorney General made clear that the granting of a provisional unlawful presence waiver does not present a ground for termination or dismissal of removal proceedings outside of the grounds set forth in the regulations. You may learn more about provisional unlawful presence waivers generally in our full article [see article].

The Attorney General's decisions in Matter of Castro-Tum and Matter of S-O-G- & F-D-B- are highly unfavorable to aliens in removal proceedings, foreclosing one avenue of defense from removal that was previously available in many cases. In general, any alien facing removal proceedings should consult with an experienced immigration attorney immediately. An experienced attorney will be able to assess the facts and circumstances of a particular case and provide guidance and counsel in light of those facts and circumstances and the current rules governing proceedings.

To learn more about cases and issues like this one, please see our index article on Matter of Castro-Tum and related decisions [see index].