Attorney General Clarifies IJ Dismissal Authority

An unexceptional order that received an unexpected response

By Andrew R. Arthur on September 23, 2018

Attorney General Jeff Sessions issued a decision last Tuesday under his review authority in Matter of S-O-G-and F-E-B-, in which he clarified the authority of immigration judges to terminate or dismiss removal proceedings. That such an unexceptional order is necessary demonstrates significant issues within the immigration courts, but it has not stopped the immigration judges' union from complaining about it.

The two cases that were consolidated in that decision presented very different facts. Respondent S-O-G- is a Mexican national who was charged in March 2015 with removability as an alien present without being admitted or paroled, or who entered the United States illegally. The respondent conceded removability, and indicated an intention to file for relief or protection for removal from the immigration court; no such applications were filed, however. In the course of those removal proceedings, the Department of Homeland Security (DHS) determined that S-O-G- had previously been ordered removed in absentia in July 2002.

DHS moved to terminate that case given that prior order, which the immigration judge granted. S-O-G- appealed that decision to the Board of Immigration Appeals (BIA), "challenging 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." The BIA affirmed the decision of the immigration judge on the grounds that DHS has "broad prosecutorial discretion to initiate removal proceedings, to cancel a[] Notice to Appear prior to jurisdiction vesting with the [i]mmigration [j]udge, and to seek dismissal after jurisdiction has vested."

F-D-B- is a Brazilian national who entered illegally in 2004. She failed to appear for her removal proceedings, and was ordered removed in absentia. She moved to reopen in December 2013, a motion that was unopposed. In the subsequent proceedings, she conceded removability, and her case was administratively closed in 2016 so that she could await the adjudication of an application for a provisional unlawful presence waiver, as she had obtained a family-based visa.

That waiver was granted, and in December 2017, she moved to terminate the proceedings in order to continue her consular process abroad. "DHS opposed the motion, arguing that removability had been established and that F-D-B should seek voluntary departure or other relief within the removal proceeding." Her motion was granted, however, and the immigration judge terminated the proceedings without prejudice. As the attorney general noted:

The 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. Nevertheless, the immigration judge terminated the proceedings without requiring her departure — stating in a written order that there "appears [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" — enabling her to remain in the United States illegally while awaiting her consular interview in Brazil.

DHS appealed that decision, and the BIA affirmed the immigration judge's order "citing 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.'" Accordingly, the BIA determined that termination without prejudice was appropriate in that matter.

The attorney general held that the BIA and immigration judge had properly followed the regulations in dismissing S-O-G-'s removal proceedings, because she was already subject to an order of removal. Specifically, he agreed with the BIA that dismissal was appropriate either because the Notice to Appear (NTA) initiating those proceedings had been improvidently issued, in accordance with 8 C.F.R. § 239.2(a)(6), or under 8 C.F.R. § 239.2(a)(7) because, the attorney general held, "DHS had demonstrated that moving forward in this proceeding, duplicating its previous efforts, was not in the best interests of the Government."

By contrast, he noted, the immigration judge in Matter of F-D-B- "did not identify any statutory or regulatory basis to justify terminating the removal proceedings." Rather, the judge "cited only the facts of the matter, the court's 'busy docket, and her own 'discretion' to terminate the case." He continued: "Similarly, the Board cited no legal basis to affirm the termination, relying solely on 'the particular facts and circumstances of [the] case' to support its decision."

The attorney general held that "immigration judges have no inherent authority to terminate removal proceedings even though a particular case may pose sympathetic circumstances." Rather, the authority of immigration judges to terminate removal proceedings come strictly from the regulations, and must be applied in accordance with those regulations.

For example, under 8 C.F.R. § 1239.2(f):

An immigration judge may terminate removal 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 the matter involves exceptionally appealing or humanitarian factors; in every other case, the removal hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state of the proceedings.

The attorney general noted that 8 C.F.R. § 1240.12(c) provides authority to immigration judges to terminate removal proceedings where the charges of removability against a respondent have not been sustained. That regulation states:

The order of the immigration judge shall direct the respondent's removal from the United States, or the termination of the proceedings, or other such disposition of the case as may be appropriate. The immigration judge is authorized to issue orders in the alternative or in combination as he or she may deem necessary.

While this regulation may appear to grant immigration judges broad authority to terminate proceedings, in reality that authority is quite circumscribed, as the attorney general made clear. In particular, he cited to Matter of Sanchez-Herbert, a case that involved termination following proof that the respondent had left the United States while removal proceedings were pending. The BIA held there that the immigration judge erred in terminating removal proceedings, and that the judge instead should have issued an in absentia order. It found: "If the DHS meets its burden, the Immigration Judge should issue an order of removal; if it cannot, the Immigration Judge should terminate proceedings."

The attorney general also cited to Matter of Roussis, a deportation case from 1982. As the BIA found there:

It has long been held that when enforcement officials of the Immigration and Naturalization Service [INS] choose to initiate proceedings against an alien and to prosecute those proceedings to a conclusion, the immigration judge is obligated to order deportation if the evidence supports a finding of deportability on the ground charged.

Although the agencies' names and the nature of the proceedings have changed, this precedent is still sound.

This is true not simply because precedent supports it, but rather also because common sense dictates it. Consider a case in which an immigration judge has terminated proceedings for the reasons set forth in Matter of F-D-B-, that is the court has a "busy docket" and the judge has a "discretion" to order termination. If the respondent is removable and lacks relief, nothing stops DHS from simply filing a new NTA. Even if the immigration judge terminates that case as well, the immigration court and DHS would be stuck on an endless Möbius strip of termination and refiling.

Consider also the ground identified by the immigration judge in Matter of F-D-B-, that is "the courts' busy docket,'" and the immigration judge's discretion. When I was a judge, I had a busy docket. I could have easily taken care of it by terminating one case, half of my cases, or the entire docket. The absurdity of such action need not be explained. Nor would it have been appropriate for me to only terminate so-called "sympathetic" cases in which respondents were removable but not eligible for relief. To do so, I would have had to have removed myself from the role of a neutral arbiter. I would no longer have been applying the law, I would have been the law.

Respectfully, removal proceedings only work when all of the actors follow their statutory and regulatory roles. If a respondent is removable and does not have relief, it is incumbent on the immigration judge to order the respondent removed. If the respondent is removable, but is entitled to relief, that relief must be granted. If the respondent is not removable, the proceedings should be terminated. Congress makes the rules, and immigration judges and DHS must follow them.

And one of the rules that Congress has not made is to grant immigration judges inherent authority to terminate cases that should otherwise be decided. As I noted in a November 2017 post:

Immigration judges are unique officers in our judicial system. Under the Immigration and Nationality Act (INA):

The term "immigration judge" means an attorney whom the Attorney General appoints as an administrative judge within the Executive Office of Immigration Review, qualified to conduct specified classes of proceedings, including a hearing under section 240. An immigration judge shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe, but shall not be employed by the Immigration and Naturalization Service.

The Court of Appeals for the Third Circuit has held that "there is nothing constitutionally special about immigration judges," a statement that by itself would not imbue the immigration judge corps with a lot of confidence. In that context, however, the circuit court was referencing a 40-year-old decision by the Court of Appeals for the Ninth Circuit that succinctly summarized the legal authority of such judges. Specifically, in Lopez–Telles v. INS, the Ninth Circuit concluded:

Immigration judges, or special inquiry officers, are creatures of statute, receiving some of their powers and duties directly from Congress ... and some of them by subdelegation from the Attorney General. ... These statutes and the regulations implementing them ... contain a detailed and elaborate description of the authority of immigration judges.

In that case, a Nicaraguan national requested that the immigration court terminate her proceedings for "humanitarian reasons" because her house had been destroyed in an earthquake. The immigration judge found that he lacked that authority, and denied the request. The circuit court, having reached the conclusion above, affirmed that decision. The court continued, finding that an immigration judge's:

[P]owers are sharply limited, usually to the determination of whether grounds for deportation charges are sustained by the requisite evidence or whether there has been abuse by the INS in its exercise of particular discretionary powers. This division between the functions of the immigration judge and those of INS enforcement officials is quite plausible and has been undeviatingly adhered to by the INS.

Only DHS has "prosecutorial discretion" to move for dismissal of an NTA as "improvidently issued" once it is been filed. Immigration judges lack the authority to dismiss or terminate removal proceedings once they have been filed, absent such a motion, except as set forth above.

Somewhat surprisingly, however, there has been blowback against this rather common sense decision. As BuzzFeed News reported on Wednesday:

A representative of the national union of immigration judges says a new decision by Attorney General Jeff Sessions about the authority of judges to dismiss immigration cases is part of a broader effort by Sessions to limit their independence.

With all due respect to the union (of which I was once a member), the attorney general's decision does no such thing. Even if there were merit in some of the union's other complaints, this particular one "jumps the shark".

Again, immigration judges have limited authority under the INA and its implementing regulations. All that the attorney general did in Matter of S-O-G- and F-D-B- is to recognize this fact. That he had to do so at all demonstrates why such decisions are necessary.