A motion to dismiss is when the government representative declines to pursue charges against an individual in removal proceedings. A motion to terminate is when a respondent requests to end their removal proceedings.
An Overview of Removal Proceedings
Removal proceedings are hearings held before an immigration judge (IJ) to determine whether an individual may remain in the United States. Removal proceedings commence when a U.S. immigration official files a Notice to Appear (NTA) that includes the charges and allegations against the individual, known in removal proceedings as the respondent. The NTA should provide the date, time, and place of the initial hearing. The NTA serves many functions like explaining why the government thinks the respondent may be deportable and gives notice to the respondent. The government must then prove the grounds for removal.
Removal proceedings begin with an initial hearing, known as a master calendar hearing. At a master calendar hearing, the respondent must admit or deny the charges brought against them. The respondent also has an opportunity to identify any defenses to removal they may have and file applications for any relief for which they may be eligible. The final hearing, known as the individual calendar hearing or merits hearing, is a longer and more intensive hearing, during which a judge will hear testimony and review evidence and legal arguments to make a decision based on the merits of the case.
Individuals facing deportation may challenge the government’s charging document or the NTA using motions to terminate or dismiss, motions to suppress, motions to reopen, and motions to reconsider. These motions provide an opportunity to highlight mistakes in the government’s documentation or handling of the case in the hopes of bringing about a favorable judgement for the respondent.
Basis for a Motion to Dismiss
The motion to dismiss is stipulated in 8 CFR § 1239.2(c). This regulation allows for the government counsel to seek dismissal of the case based on grounds set out in 8 CFR § 239.2(a). These grounds are where the respondent: (1) is a national of the U.S.; (2) is not deportable or inadmissible; (3) is deceased; (4) is not in the U.S.; (5) failed to file a timely petition but the failure was excused; (6) the NTA was improvidently issued; or (7) circumstances in the case have changed. This motion is largely permitted through prosecutorial discretion (PD) and most cases for unaccompanied children will fall under prongs six or seven. PD arms ICE prosecutors with the discretion to not pursue a case even if ICE has the authority to do so. The extent and limit of PD was recently set out in two memos issued by ICE’s Office of the Principal Advisor (OPLA), the representative of the government in the immigration sphere.
The first memo is the Mayorkas Memo, issued in September 2021, which enumerates three categories for how ICE prosecutors should prioritize cases: (A) Threat to National Security, (B) Threat to Public Safety and (C) Threat to Border Security. Through (C), OPLA delineated that if a person entered the U.S. unlawfully, they were to become a border priority. However, this only applies to individuals who entered on or after November 1, 2020, or those who were apprehended at the border while attempting unlawful entry. Unfortunately, on June 10, 2022, the U.S. District Court for the Southern District of Texas issued a final judgment vacating the Mayorkas Memo. At this time, ICE is not relying upon or applying this memorandum.
The second and more important memo for children’s immigration advocates is the Doyle Memo, which clarifies that even if a respondent fits into one of the categories outlined in the Mayorkas Memo, there can still be mitigating factors that weigh in favor of declining enforcement against the respondent. Mitigating factors can include length of time in the U.S., client or family services in the U.S., circumstances of entry into the U.S., status of survivor of crime or trafficking, eligibility for relief, or compelling humanitarian factors. Unfortunately, OPLA does not seem to be applying the Doyle memo currently.
Given this, practitioners should not cite to the memos and any requests for and grants of PD will be predicated on the long-standing common-law history of its prior use. OPLA has emphasized specifically, however, that there are no bright line rules in this process, and they are reviewing everything on a case-by-case basis. PD may still be an available option to practitioners. Advocates can still rely on the principles and arguments outlined in the memos, which can be helpful on an instructive basis.
Basis for a Motion to Terminate
A motion to terminate asks an IJ to end a case by alleging that the government’s charges are substantively or procedurally defective. In Gonzalez v. Garland, the U.S. Court of Appeals for the Fourth Circuit in 2021 abrogated a 2018 decision in Matter of S-O-G- & F-D-B- which was issued by the Attorney General (AG) and restricted an IJ’s authority to terminate removal proceedings. The Fourth Circuit held that the plain language of the regulations confers on IJs and the BIA the inherent authority to terminate removal proceedings. In reaching this conclusion, the Court focused on 8 CFR § 1003.10(b) and 8 CFR § 1003.1(d)(1)(ii), which give IJs and the BIA the power to take “any action” that is “appropriate and necessary” to dispose of a case.
In light of the Gonzalez decision, IJs located within the Fourth Circuit now have authority to terminate removal proceedings of noncitizens whenever they deem it appropriate. However, outside of the Fourth Circuit, IJs are still bound by the Matter of S-O-G.
In Matter of S-O-G, the AG held that IJs, “have no inherent authority to terminate or dismiss removal proceedings” even if a case presents compelling circumstances, restricting IJs’ discretion to terminate. However, the decision also held that the IJ can terminate proceedings if it is expressly authorized by (1) 8 C.F.R. § 1239.2(f), where a respondent is eligible for naturalization, has a pending naturalization application, and has exceptionally appealing or humanitarian factors in their case, and (2) under 8 C.F.R. § 1239.2(c) where DHS moves to dismiss a notice to appear. This decision, however, does not affect motions to terminate that are grounded in law. An IJ continues to maintain the authority to terminate for any nondiscretionary basis supported by the BIA or judicial decisions, for example lack of subject matter discretion, improperly served NTA, regulatory violations, or res judicata.
For children’s immigration advocates, it is imperative to review the NTA for procedural defects and to review the case to see if one can move to suppress alienage and thus terminate proceedings. For example, In re Rosa Mejia-Andino upheld termination of proceedings because the parents of minor respondent under the age of 14 had not been served with the NTA even though they were living in the U.S. Requirements of 8 CFR § 236.2 state that in the case of a minor under 14 years old, service shall be made upon the “person with whom the minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend.” Similarly, Flores-Chavez v. Ashcroft has also held that in the Ninth Circuit DHS must serve the NTA on a released minor’s custodian as well as the minor respondent, otherwise the NTA is insufficient. However, B. R. v. Garlandheld that this improper service can be cured if DHS later perfects service before substantive removal proceedings begin. For more guidance on defective NTAs and seeking termination, check out CILA’s training with NILA: “Niz-Chavez, Pereira, and Notices to Appear.”
How Can a Practitioner Seek Dismissal?
ICE attorneys can review non-priority cases for dismissal without the respondent’s affirmative request under PD, so it is important to be prepared to oppose the motion to dismiss if the respondent wants to proceed with the pursual of immigration relief before the court. If the respondent wants to pursue dismissal, they can usually seek it after the NTA has been issued. They can do so by filing an affirmative request with OPLA following local guidelines. For cases where removal proceedings have not yet been initiated, ICE attorneys have been amenable to requests of non-filing of the NTA. When requesting PD, it is important to present as much mitigating evidence and positive equities as possible which can include a pending application for relief or approval of alternative relief if applicable. OPLA attorneys in various immigration courts have been holding stakeholder meetings to explain their process and policies for reviewing PD requests, given the vacatur of the Mayorkas memo, so it may be helpful to check whether your local OPLA office has issued helpful guidelines.
How Can a Practitioner Seek Termination?
A motion to terminate may be filed at any point during a removal proceeding, but it is recommended that it be filed before the respondent has pled to the allegations in the NTA. At that point, the immigration court has not yet sustained the government’s charge and the government bears the burden of proving its charge by the high standard of “clear and convincing evidence.” (8 CFR § 1240.8(a)). An immigration attorney who files a motion to terminate will normally deny the government’s charges at the initial master calendar hearing and inform the IJ that they plan to file a motion to terminate. They should ask for a briefing schedule and the IJ will usually then set dates for the motion and any opposition to be filed. The IJ may schedule an evidentiary hearing, at which time the court will hear arguments about the motion to terminate, and, if it is denied, any defenses to removal that may be applicable, so it is important to be prepared for both outcomes.
Pros and Cons of Dismissal
Pro: If your client has a removal order, one advantage of a grant of dismissal is that it will cancel out the removal order. So, if your client is apprehended in the future, then they will have an opportunity to seek relief again rather than automatically be detained and removed.
Pro: If your client is eligible for an alternative form of relief, a dismissal will be favorable for the client as it will end the client’s removal proceeding and give them time to focus on the alternative relief.
Pro: If your client has a weak case for relief from removal, they can avoid future hearings and a likely order of removal.
Con: A disadvantage is that once the client agrees to the dismissal, then they forfeit their right to pursue asylum before the court, which will also mean that they cannot apply or qualify for a work permit or other benefits of the pending application.
Con: Children do not accrue unlawful presence, and even once they turn 18, they will not accrue unlawful presence if they have submitted an asylum application. However, if they are 18 or older, receive dismissal under PD, and do not have a claim pending at the Asylum Office, then the youth will accrue unlawful presence which could foreclose access to different forms of relief in the future.
Pros and Cons of Termination
Pro: For immigrants with criminal convictions who do not have a strong defense to removability, this motion can be strategically advantageous. Immigrants with criminal convictions placed in removal proceedings are charged with one or more grounds of “deportability” or “inadmissibility” based on allegations that the immigrant has committed a category of offense that makes him deportable under the Immigration & Nationality Act (INA).
Pro: Another reason to file for termination is if a client qualifies for an immigration benefit or relief outside of the court or is eligible for naturalization.
Pro: If the client is pursuing relief outside of court (through USCIS) they no longer must go to immigration hearings, which can be a drain on resources and time.
Con: Because this motion can be granted without prejudice, ICE can bring the same case again. Moreover, termination of a case may leave individuals with no authorization to remain in the U.S. if alternative relief is not available outside of court.
While termination and dismissal both have their benefits, they can also place respondents in uncertain situations, sometimes without access to relief or work permits. Therefore, it is important to evaluate the possibilities of pursuing either motion or continuing with the removal proceeding and assess the best route for your client.