Termination v. Dismissal in Removal Proceedings

To dismiss or terminate removal proceedings ends removal proceedings altogether. The Immigration and Customs Enforcement’s (ICE’s) Office of the Principal Legal Advisor (OPLA), the representative of the government in the immigration sphere, or another Department of Homeland Security (DHS) government official (see list of officials here), may seek to dismiss immigration proceedings on their own accord and not pursue charges against an individual. Alternatively, a respondent may ask DHS to move to dismiss a case. An immigration judge (IJ) may terminate proceedings on their own accord, or a respondent may ask an IJ to terminate proceedings. The reasons for a dismissal or termination can also vary depending on the case and specific issues involved.

An Overview of Removal Proceedings

Removal proceedings are hearings held before an 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 removable/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 removal may challenge the government’s charging document or the NTA using motions to terminate, motions to suppress, motions to reopen, and motions to reconsider. They may also seek OPLA to join in a motion to dismiss. 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 addressed in 8 C.F.R. § 1239.2(c). This regulation allows for the government’s counsel to seek dismissal of the case based on grounds set out in 8 C.F.R. § 239.2(a). These grounds occur when the respondent: (1) is a national of the United States; (2) is not deportable or inadmissible; (3) is deceased; (4) is not in the United States; (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.

Prosecutorial discretion 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 set out in two memos issued by DHS. Litigation followed and DHS’s civil immigration enforcement priorities were enjoined in June 2022 by the decision in Texas v. United States, No. 6:21-00016 (S.D. Tex. June 10, 2022). However, the case was appealed, and the Supreme Court held that Texas and Louisiana lacked Article III standing to challenge the guidelines in June 2023. Following the decision, DHS reinstated both memos, each elaborated on below. In September 2023, EOIR issued guidance for EOIR adjudicators in DM 23-04, Department of Homeland Security Enforcement Priorities and Prosecutorial Discretion Initiatives.

The first memo is the Mayorkas Memorandum, issued in September 2021, which enumerates three categories for how DHS should prioritize cases: (A) Threat to National Security, (B) Threat to Public Safety, and (C) Threat to Border Security. Through (C), DHS delineated that if a person entered the United States 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.

The second memo for children’s immigration advocates to be aware of is the Doyle Memorandum, which provides guidance to OPLA attorneys working in immigration court proceedings. The memo clarifies that even if a respondent fits into one of the categories outlined in the Mayorkas Memorandum, 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 United States, client or family services in the United States, circumstances of entry into the United States, status of survivor of crime or trafficking, eligibility for relief, or compelling humanitarian factors.  OPLA reviews PD requests on a case-by-case 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.

Prior Attorney General Jeff Sessions issued a case in 2018, Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), that limited an IJ’s ability to terminate and dismiss proceedings. The decision held that IJs lacked the “inherent authority” to dismiss or terminate a case unless expressly allowed. The decision relied heavily on Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) regarding administrative closure, which was overturned in 2021 by Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). In December 2022, Attorney General Merrick Garland issued Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022) that overruled Matter of S-O-G- & F-D-B- and reinstated IJ's authority to terminate and dismiss removal proceedings.

Matter of Coronado Acevedo found that IJs have authority to dismiss or terminate cases where expressly permitted and in certain circumstances. The holding states:

Pending the outcome of the rulemaking process, immigration judges and the Board of Immigration of Appeals may consider and, where appropriate, grant termination or dismissal of removal proceedings in certain types of limited circumstances, such as where a noncitizen has obtained lawful permanent residence after being placed in removal proceedings, where the pendency of removal proceedings causes adverse immigration consequences for a respondent who must travel abroad to obtain a visa, or where termination is necessary for the respondent to be eligible to seek immigration relief before United States Citizenship and Immigration Services.

28 I&N Dec. 648 (A.G. 2022). This is significant for many unaccompanied children’s cases. For example, Matter of Coronado Acevedo specifically raises the situation where a respondent in removal proceedings with approved Special Immigrant Juvenile Status (SIJS) must have their removal proceedings dismissed or terminated to seek adjustment of status before U.S. Citizenship and Immigration Services (USCIS).

There is also support in the regulations that IJs and the Board have authority to dismiss and terminate proceedings as a part of their overall role as EOIR adjudicators. For example, 8 C.F.R. § 1003.10(b) includes the general powers and duties of IJs and says, “immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” Additionally, 8 C.F.R. § 1240.12(c) covers orders by IJs and says, “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.”

There are additional areas where termination is expressly authorized by law. For example, (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; (2) under 8 C.F.R. § 214.14(c)(1)(i) where a respondent has a U visa petition pending USCIS’s adjudication; and (3) under 8 C.F.R. § 214.11(d)(1)(i) where a respondent has a T visa petition is pending USCIS’s adjudication. Termination can be sought for many reasons. Other examples of when an advocate should consider seeking termination in a child’s immigration case include when DHS issues a defective NTA, fails to properly serve the NTA, does not meet its burden, or fails to properly issue Form I-770.

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 terminate proceedings on this basis or for other reasons. For example, In re Rosa Mejia-Andino upheld termination of proceedings because the parents of a minor respondent under the age of 14 had not been served with the NTA even though they were living in the United States. Requirements of 8 C.F.R. § 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. Garland held 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 resource, “Challenging a Defective Notice to Appear (NTA) in Children’s Removal Proceedings.”

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 dismissal after the NTA has been issued. Respondent or their counsel can request dismissal by filing an affirmative request with OPLA for PD following the Doyle Memorandum and 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 held stakeholder meetings to explain their process and policies for reviewing PD requests, so it may be helpful to check with other practitioners in your area whether your local OPLA office has issued helpful guidelines. Additionally, information can be found on OPLA’s webpage, “Doyle Memorandum: Frequently Asked Questions and Additional Instructions.”

How Can a Practitioner Seek Termination?

A motion to terminate may be filed for various reasons. Generally, it is recommended that it be filed at the first opportunity and ideally 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(s) and the government bears the burden of proving its charge(s) by the high standard of “clear and convincing evidence.” (8 C.F.R. § 1240.8(a)). An immigration attorney who plans to file a motion to terminate will normally deny the government’s charge(s) at the initial master calendar hearing and inform the IJ that they plan to file a motion to terminate. Counsel may ask for a briefing schedule, and the IJ will usually set dates for the motion and any opposition to be filed. Alternatively, an immigration attorney can deny charges and move to terminate at the same hearing. The motion to terminate could be presented orally or in writing; although, written motions are generally preferred. The IJ could then set deadlines for a response by OPLA and potentially could ask for additional briefing, if needed. In either scenario, the IJ may also schedule an evidentiary hearing, at which time the court will hear arguments about the issues raised in 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. Review CILA’s resource, “Challenging a Defective Notice to Appear (NTA) in Children’s Removal Proceedings” for more information.

Pros and Cons of Dismissal & Termination

Pro: If your client has a prior removal order and requested reopening, one advantage of a grant of dismissal/termination is that it will cancel 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 or different immigration benefit, a dismissal/termination will be favorable for the client as it will end the client’s removal proceedings and give them time to focus on the alternative relief before a different immigration agency (USCIS, for example). And sometimes, dismissal/termination is necessary to pursue the alternative relief.

Pro: If your client has a weak case for relief from removal, they can avoid future hearings and any likely order of removal.

Pro: For immigrants with certain 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 sometimes 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).

Con: A disadvantage is that once the client agrees to the dismissal/termination, then they forfeit their right to pursue asylum or another form of relief before the court (e.g., cancellation of removal, withholding of removal, and protection under the Convention Against Torture), which will also mean that they cannot apply or qualify for a work permit or other benefits of the pending application.

Con: Because this motion can be granted without prejudice, DHS can bring the same case again.

Final Thoughts

While dismissal and termination 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.

For more information on prosecutorial discretion, dismissal and termination, as well as other procedural options in removal proceedings, read CILA’s resource, “Procedural Options in Removal Proceedings for Youth,” which is available to those with a CILA account. Learn more about creating a CILA account here