27 I. & N. Dec. 462
BIA2018Background
- Two consolidated matters were referred to the Attorney General after immigration judges ended removal proceedings in different ways: DHS moved to dismiss in S-O-G-; respondent moved to terminate in F-D-B-.
- S-O-G-: DHS learned a prior in absentia removal order existed; DHS moved to dismiss; IJ granted dismissal/termination and BIA affirmed based on regulatory dismissal standards and DHS prosecutorial discretion.
- F-D-B-: Respondent had reopened an in absentia order, obtained a provisional waiver, and sought termination to await consular processing; IJ terminated the case citing docket congestion and discretion; BIA affirmed on the facts.
- The Attorney General reviewed both to clarify the legal standard for IJ dismissal or termination post-commencement of proceedings.
- The core legal question: whether immigration judges have inherent or general authority to dismiss or terminate removal proceedings outside the specific regulatory grounds, or only under the circumstances expressly provided by regulation or when DHS cannot sustain removability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJs have inherent authority to dismiss or terminate proceedings beyond regulations | IJs may use inherent/discretionary authority to end cases (e.g., docket management, equities) | Datasets: DHS/AG argue only statutory/regulatory bases permit dismissal/termination; DHS prosecutorial discretion matters | IJs do not have inherent authority; may act only under specified regulations or when DHS fails to sustain removability |
| Proper standard for DHS motions to dismiss after jurisdiction vests | DHS: may dismiss where Notice to Appear was improvidently issued or continuation is not in government’s best interest | Respondent: due process concerns if dismissal prevents access to relief before IJ | DHS motions may be granted if they meet 8 C.F.R. § 1239.2(c)/§239.2(a) regulatory standards; S-O-G- affirmed |
| Whether IJ-ordered termination for docket management is permissible | F-D-B- argued equities justified termination to await consular processing | DHS argued removability established and termination lacked regulatory basis | Termination for docket congestion or general equities is impermissible absent a regulatory basis; F-D-B- vacated and remanded |
| Scope of IJ general authority clause (8 C.F.R. § 1240.1(a)(1)(iv)) | IJs may “take any other action” consistent with law, implying broader discretion | AG: clause cannot be read to authorize ending proceedings beyond express regulatory grounds; conflicts with INA mandate to decide removability | General authority does not authorize dismissal/termination beyond explicit regulatory bases |
Key Cases Cited
(No officially reporter-published cases with bluebook citations appear in the opinion; the decision primarily relies on INA, federal regulations, and administrative I&N decisions.)