Introduction: Matter of Andrade Jaso and Carbajal Ayala, 27 I&N Dec. 557 (BIA 2019)

On May 31, 2019, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Andrade Jaso and Carbajal Ayala, 27 I&N Dec. 557 (BIA 2019) [PDF version]. The Board held that an Immigration Judge has the authority under 8 C.F.R. 239.2(a)(7) (2018) to dismiss removal proceedings upon finding that it is an abuse of the asylum process for an alien to file a meritless asylum application with the United States Citizenship and Immigration Services (USCIS) for the sole purpose of pursuing cancellation of removal in removal proceedings. In this article, we will examine the Board’s analysis and conclusions and what they mean in similar cases going forward.

Factual and Procedural History: 27 I&N Dec. 557, 557-58

On August 1, 2015, the respondents applied for asylum with the USCIS through their counsel. On the advice of their counsel, the respondents did not appear at their asylum interview with the USCIS. Because the applicants appeared to be inadmissible or deportable, the USCIS referred their asylum applications to the Immigration Court to be adjudicated in removal proceedings, in accord with the regulations at 8 C.F.R. 208.14(c)(1) and 1208.14(c)(1).

In the course of the first master calendar hearing before the Immigration Judge on October 7, 2015, the respondents immediately withdrew their asylum applications. In lieu of seeking asylum, the applicants applied for cancellation of removal.

On December 12, 2016, the Department of Homeland Security (DHS) moved to dismiss the removal proceedings without prejudice. The DHS argued that the circumstances had changed since the notices to appear were issued and that the continuation of the removal proceedings was no longer in the best interest of the Government. In support of its motion, the DHS addressed “the questionable manner in which the respondents and their attorney changed the requested form of relief at their first opportunity in Immigration Court after failing without explanation to appear at their asylum interview before the USCIS” (BIA’s description of Government’s position before the Immigration Judge).

The Immigration Judge found that the respondents had filed meritless asylum applications. Specifically, he found that the respondents had then “affirmatively elected” to not appear at their asylum interview with the USCIS, and “deliberately declined” to petition the USCIS to reschedule their interview. Based on these circumstances, the Immigration Judge concluded that the respondents and their counsel had abused the asylum process.

For these reasons, the Immigration Judge granted the DHS’s motion to dismiss the charges against the respondents. The respondents appealed from the decision to the BIA.

Board Articulates General Rule: 27 I&N Dec. 557, 558

The Board explained that “[t]he DHS has broad discretion to initiate removal proceedings by issuing, serving, and filing a Notice to Appear…” The filing of the Notice to Appear vests jurisdiction over an alien’s removal proceedings with the Immigration Court (see INA 239(a); 8 C.F.R. 1003.14(a) (2018)). The Board noted in Matter of Ordaz, 26 I&N Dec. 637, 641 (BIA 2015) [PDF version] ,that the DHS has the sole discretion to begin “commence” proceedings.

At any time before jurisdiction over removal proceedings vests before an Immigration Judge, the DHS may unilaterally cancel a notice to appear in accord with 8 C.F.R. 239.2(a) and 1239.2(a) (2018). The situation changes once jurisdiction over the removal proceedings vests with the Immigration Court. After that event, “the DHS may move for dismissal [of the removal proceedings] only for certain specified reasons…”

The Board described the distinction in the DHS’s authority before and after jurisdiction vests with the Immigration Judge in its 1998 decision in Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998) [PDF version]: “[The] language [of the regulations] marks a clear boundary between the time prior to commencement of proceedings, where a [DHS] officer has decisive power to cancel proceedings, and the time following commencement, where the … officer merely has the privilege to move for dismissal of proceedings.” The Board went on to explain in Matter of G-N-C- that “[b]y this distinction, the regulation presumably contemplates not just the automatic grant of a motion to [dismiss], but an informed adjudication by the Immigration Judge or by this Board based on an evaluation of the factors underlying the [DHS’s] motion.” Id.

Included among the “certain specified reasons” for which the DHS may move to dismiss proceedings is the determination by DHS that the “[c]ircumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government” (see 8 C.F.R. 239.2(a)(7), (c), 1239.2(c)). The Attorney General recently addressed dismissal in Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 465-66 (A.G. 2018) [PDF version], which we discuss in a separate article [see article].

In Matter of Sanchez-Herbert, 27 I&N Dec. 43, 45 (BIA 2012) [PDF version], which we discuss in full in a separate article [see article], the Board noted that an Immigration Judge may terminate removal proceedings in “specific circumstances consistent with the law and applicable regulations.” In the instant matter, the Board concluded that “[a]n Immigration Judge has the authority to dismiss removal proceedings [under] 8 C.F.R. 239.2(a)(7) upon a finding that it is an abuse of the asylum process to file a meritless asylum application with the USCIS for the sole purpose of seeking cancellation of removal in the Immigration Court. In other words, the facts presented in the instant case — wherein the record supported the finding that the applicants had filed meritless asylum applications with the USCIS for the sole purpose of starting a process that would allow them to eventually apply for cancellation of removal in removal proceedings — was one of the circumstances meriting dismissal under the language of 8 C.F.R. 239.2(a)(7).

Analysis of the Facts of the Instant Case in Context of the Rule: 27 I&N Dec. 557, 558-59

The Board agreed with the Immigration Judge’s finding that the respondents filed meritless asylum applications with the USCIS for the sole purpose of securing a hearing on their applications for cancellation of removal before an Immigration Judge. On appeal, the respondents did not dispute the Immigration Judge’s findings that their asylum applications were meritless. The respondents also did not assert on appeal that they had a colorable asylum claim.

The respondents’ argument on appeal was that the DHS failed to demonstrate a change in circumstances after the issuance of the notices to appear, which vested authority over their removal proceedings with the Immigration Judge. The respondents noted that they had failed to appear for their asylum interview before the DHS issued the notices to appear.

The Board found the respondents’ argument unavailing. It explained that “the respondents’ withdrawal of their asylum applications at the first master calendar hearing constitutes a change in circumstances that occurred after the issuance of the notices to appear.” The Board added that the conduct of the respondents after their applying for asylum did in fact “change[] the circumstances in their case ‘to such an extent that continuation [of the proceedings was] no longer in the best interest of the government,’” which was exactly the standard that the government is required to meet to support a motion for dismissal under 8 C.F.R. 239.2(a)(7). For this reason, the Board concluded that “the DHS’s motion was based on a valid ground for dismissal under 8 C.F.R. 239.2(a)(7) and (c).”

The respondents made one additional argument. They took the position that the Immigration Judge violated their right to due process by dismissing the removal proceedings without first adjudicating their applications for cancellation of removal. The Board, however, disagreed, holding that “the desire to regularize their status through discretionary relief, such as cancellation of removal, does not entitle them to the commencement and continuation of removal proceedings.” To this effect, the Board cited to the decision of the United States Court of Appeals for the Ninth Circuit in Mendez-Garcia v. Lynch, 840 F.3d 655, 666 (9th Cir. 2016) [PDF version]. In Mendez-Garcia, the Ninth Circuit held that “[n]o statute or regulation requires to take action on [the aliens’] applications within a set period, nor does cancellation of removal ‘give rise to a substantive interest protected by the due process clause.’”

The Board concluded by noting that the removal proceedings were dismissed without prejudice under 8 C.F.R. 1239.2(c). Not only had the respondents not been ordered removed, but the Board observed that “there is no indication that they are in imminent danger of removal.” In the event that the DHS were to eventually opt to again place the respondents in removal proceedings by issuing new notices to appear, the respondents would be able to pursue any form of relief from removal for which they might be eligible, including cancellation of removal.

For the foregoing reasons, the Board concluded that the Immigration Judge properly granted the DHS’s motion to dismiss removal proceedings without prejudice. Thus, the Board dismissed the respondents’ appeal.

Conclusion

After jurisdiction over removal proceedings vests with an immigration judge, the DHS may only move to dismiss the charges for certain specified reasons. The Board’s key holding in the instant decision is that a demonstration that the respondents filed a meritless asylum application for the sole purpose of seeking cancellation of removal in immigration proceedings is a proper reason to grant a DHS motion to dismiss removal proceedings. The decision highlights, among other things, that asylum applications are only appropriate in cases where the applicant has a colorable claim to asylum, something that the respondents ultimately declined to argue in the instant case.

An alien seeking long-term immigration relief or facing removal proceedings should consult with an experienced immigration attorney immediately. An experienced attorney will be able to assess the alien’s situation and determine how best to proceed with his or her case in light of the specific facts and the applicable immigration laws and precedents.

To learn more about issues related to those discussed in this article, please see our website’s growing sections on removal and deportation defense [see category] and asylum and refugee protection [see category]. Please also see our index of articles on immigration precedent decisions [see index].