Tenth Circuit Finds no Prejudice to Noncitizen Forced to Apply for Adjustment before IJ Rather than USCIS

The Tenth Circuit, in assuming that DHS violated certain regulations during their apprehension of a non-citizen, determined that the non-citizen did not suffer any prejudice by being required to litigate his adjustment of status application before an immigration judge rather than before U.S. Citizenship and Immigration Services.

“Mr. Aguayo emphasizes adjustment hearings in immigration court are procedurally different from non-adversarial USCIS interviews because a petitioner appears in front of the IJ ‘in a pastel jumpsuit’ and is ‘cross-examined in an adversarial courtroom by trained government lawyers, while in confinement apart from family.’ As a general matter, we are sympathetic to Mr. Aguayo’s contention. But whether the adversarial nature of immigration court potentially affected or actually affected the outcome of removal proceedings is not self-evident. As the government points out, Mr. Aguayo had ‘a full opportunity to present his case for adjustment of status before the IJ,’ and he does not argue ‘he would have submitted more or different evidence to USCIS than he presented to the IJ.’ The BIA correctly determined Mr. Aguayo ‘speculates’ but ‘provides no evidence that USCIS would have approved his adjustment application.’”

The full text of Aguayo v. Garland can be found here:

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110905064.pdf

AG Restores IJs' and BIA's Inherent Authority to Terminate Proceedings

The Attorney General has restored the authority of Immigration Judges and the Board of Immigration Appeals to terminate proceedings, particularly where the respondent will seek relief before USCIS, where the removal proceedings would cause adverse effects during consular processing, or where the respondent has obtained lawful permanent residency after being placed in removal proceedings.

The full text of Matter Coronado Acevedo can be found here:

https://www.justice.gov/eoir/page/file/1552761/download

Ninth Circuit Refuses Review of Agency Termination Order Prior to Reinstatement

The Ninth Circuit has determined that it cannot review the agency’s termination of removal proceedings - even when the termination clears the way for the issuance of a reinstatement order - because a termination order is not a final order of removal.

The full text of Lopez Luvian v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/19/18-73286.pdf

Fourth Circuit Finds that IJs Have Inherent Authority to Terminate Removal Proceedings

The Fourth Circuit has concluded that Immigration Judges have the inherent authority to terminate removal proceedings, and that the Attorney General’s contrary decision in Matter of S-O-G- & F-D-B- is not entitled to deference.

The full text of Chavez Gonzalez v. Garland can be found here: https://www.ca4.uscourts.gov/Opinions/201924.P.pdf

Attorney General Limits Immigration Judges' Authority to Terminate Proceedings

The Attorney General has determined that an Immigration Judge has no authority to terminate proceedings except as expressly authorized by the regulations or when the Department of Homeland Security has failed to meet its burden to prove removability.

“As relevant here, on motion by DHS, an immigration judge may dismiss the proceedings where ‘the Notice to Appear was improvidently issued’ or the ‘circumstances 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.’” 8 C.F.R. §§ 239.2(a)(6)−(7), 1239.2(c). The regulations also allow immigration judges to 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,’ but provide that, ‘in every other case, the removal hearing shall be completed as promptly as possible.’” 8 C.F.R. § 1239.2(f). “Apart from these circumstances, the relevant statutes and regulations do not give immigration judges the discretionary authority to dismiss or terminate removal proceedings after those proceedings have begun.”

In a footnote, the Attorney General noted that “[t]his decision does not foreclose respondents, in appropriate circumstances, from requesting that DHS file an unopposed motion to dismiss proceedings under 8 C.F.R. § 1239.2(c).”

The full text of Matter of S-O-G- and Matter of F-D-B- can be found here:

https://www.justice.gov/eoir/page/file/1095371/download

BIA Determines that IJ may not Terminate Proceedings to Allow Arriving Alien to Apply for Asylum before DHS

The Board of Immigration Appeals has determined that an Immigration Judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance.  The Department of Homeland Security has the exclusive discretion whether to subject such individuals to the credible fear process or whether to initiate removal proceedings, and once a charging document has been filed, the Immigration Judge has exclusive jurisdiction over the asylum application.

The full text of Matter of J-A-B- & I-J-V-A can be found here:

https://www.justice.gov/eoir/page/file/1008136/download

Ninth Circuit Terminates Proceedings Because of Egregious Fourth Amendment Violation

The Ninth Circuit terminated removal proceedings against a petitioner who was seized by Coast Guard officials based solely on his Latino appearance.  Because this was an egregious Fourth Amendment violation and a violation of immigration regulations designed to protected the petitioner from this type of racial profiling, the court determined that termination of proceedings was required.  In light of the regulatory violation, the court declined to determine if the petitioner's previously submitted application for Family Unit benefits was independent evidence of alienage, finding that the violation of the regulation was grounds for termination, regardless of whether there was independent evidence of alienage.

The full text of Sanchez v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/30/14-71768.pdf

The Ninth Circuit issued an amended decision in this case on September 19, 2018. In it, the Court determined that even though the Coast Guard engaged in egregious violations of the Fourth Amendment, the immigration authorities would have discovered his alienage through his Family Unity benefits application. Nevertheless, the Court held that Mr. Sanchez may be entitled to termination of his removal proceedings without prejudice for egregious regulatory violations. The Court remanded his proceedings to the agency to determine if termination is appropriate. “Applying our test for termination without prejudice, we conclude that Sanchez has made a prima facie showing that the Coast Guard officers’ violation of § 287.8(b)(2) was conscience-shocking and therefore egregious.”

The full text of the amended opinion can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/14-71768.pdf