H. N. Ferreira

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Matter of H. N. FERREIRA, Respondent
Decided December 19, 2023
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Given the significance of a respondent’s interest in securing review of a denial of a
petition to remove the conditions on permanent residence, an Immigration Judge should
ordinarily review the denial of a Form I-751 upon the request of the respondent.
FOR THE RESPONDENT: Jan J. Bejar, Esquire, San Diego, California
BEFORE: Board Panel: HUNSUCKER, PETTY, and CLARK, Appellate Immigration
Judges.
PETTY, Appellate Immigration Judge:
The respondent, formerly a conditional permanent resident of the United
States, petitioned to remove the conditions on his residence. 	United States
Citizenship and Immigration Services (“USCIS”) concluded that he failed to
prove his qualifying marriage was bona fide and denied his Form I-751,
Petition to Remove Conditions on Residence, terminating his status as a
conditional permanent resident. The respondent was then placed in removal
proceedings, where he sought review of that decision before the Immigration
Judge, as provided for by statute. The Immigration Judge, however, granted
the Department of Homeland Security’s (“DHS”) motion to terminate the
respondent’s removal proceedings before conducting that review. 	Because
the Immigration Judge did not consider the respondent’s objection to
termination, we will remand for further proceedings.
I. BACKGROUND
After admission to the United States, the respondent married a United
States citizen and was granted conditional permanent resident status based
on that marriage. In 2010, following his divorce, the respondent filed a Form
I-751 petition with USCIS to remove the conditions on his permanent
residence. USCIS, however, concluded that the respondent married for the
sole purpose of evading the immigration laws and, in 2011, terminated the
respondent’s conditional permanent resident status. 	DHS initiated removal
proceedings 	against 	him, 	charging 	him 	with 	removability 	under
section 237(a)(1)(D)(i) of the Immigration and Nationality Act (“INA”),

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8 U.S.C. § 1227(a)(1)(D)(i) (2006), as a noncitizen whose conditional
permanent residence status was terminated.
In 	Immigration 	Court, 	the 	respondent 	sought 	review 	of 	USCIS’
termination of his conditional permanent resident status. 	An Immigration
Judge concluded that DHS did not establish the respondent’s removability
and terminated the removal proceedings. 	In the absence of further review,
USCIS’ termination of the respondent’s conditional permanent residence
remained in effect.
The respondent then filed another Form I-751 petition with USCIS,
alleging that he entered into his marriage in good faith, that it ended, that he
was not at fault for failing to file a joint petition, and that he would suffer
extreme hardship if he were removed. 	USCIS denied this Form I-751
petition, 	and 	DHS 	again 	initiated 	removal 	proceedings 	under
section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i). The Notice
to Appear alleges that the respondent’s conditional permanent resident status
was terminated because he failed to establish that his qualifying marriage
was entered into in good faith and that he did not qualify for an extreme
hardship waiver.
At a 2019 hearing before the Immigration Judge, DHS indicated that it
did not have the respondent’s file and sought a continuance to locate it. The
respondent did not object but asked that the proceedings move forward as
quickly as possible to obtain review of USCIS’ decision denying his most
recent petition to remove the conditions on his residence. The Immigration
Judge continued the case for one month.
At the next hearing, DHS still had not located the respondent’s file. The
Immigration Judge asked the DHS attorney if she was moving to terminate
for failure to prosecute the case, and the DHS attorney indicated that she was.
The respondent objected on the grounds that the government “can only move
for dismissal on enumerated grounds . . . [a]nd failure to find its file is not
one of them.” 	The respondent also contended that terminating removal
proceedings would leave him without an avenue for review of USCIS’ denial
of his Form I-751, which at that point he had been seeking for nearly a
decade. 	The Immigration Judge granted DHS’ motion to terminate the
removal proceedings on the ground that the court lacked jurisdiction to
interfere 	with 	DHS’ 	prosecutorial 	discretion. 	The 	respondent 	timely
appealed.
II. DISCUSSION
This case requires us to reconcile an Immigration Judge’s regulatory
authority to terminate removal proceedings with a respondent’s interest in
having the Immigration Judge review USCIS’ denial of a Form I-751.

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A. Legal Framework
The Attorney General has statutory authority to promulgate regulations
governing Immigration Court proceedings. 	INA § 103(g)(2), 8 U.S.C.
§ 1103(g)(2) (2018). 	Pursuant to this statutory authority, the Attorney
General has, by regulation, given Immigration Judges significant latitude in
controlling the cases before them. 	See, e.g., 8 C.F.R. §§ 1240.1(a)(1)(iv),
(c), 1240.7(a), (c), 1240.46(b), (d) (2023); 8 C.F.R. § 1240.6 (2020).
Immigration 	Judges 	also 	have 	substantial 	authority 	to 	independently
adjudicate those cases. See, e.g., 8 C.F.R. §§ 1240.1(a)(1)(i)–(iii), 1240.12;
1240.41, 1240.50 (2023). 	This includes authority to dismiss or terminate
proceedings. See 8 C.F.R. § 1239.2(c) (2023); see also Matter of Coronado
Acevedo, 28 I&N Dec. 648, 651–52 (A.G. 2022). 	However, we have also
explained that an order terminating or dismissing proceedings must be
consistent with law. See Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 169
(BIA 2017); Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012).
Certain noncitizens who obtain lawful permanent resident status based on
marriage 	are 	initially 	deemed 	conditional 	permanent 	residents. 	INA
§ 216(a)(1), (h)(1), 8 U.S.C. § 1186a(a)(1), (h)(1) (2018). As we explained
in Matter of Bador, 28 I&N Dec. 638, 641 (BIA 2022), this conditional status
provides “immigration authorities time to examine the bona fides of a
marriage 	more 	fully.” 	Subject 	to 	certain 	exceptions, 	the 	conditional
permanent resident and the United States citizen spouse must jointly file a
Form I-751 petition attesting to certain facts regarding the bona fides of the
marriage within the 90 days preceding the second anniversary of the date on
which the conditional permanent resident obtained the status and must appear
for a personal interview. 1 See INA § 216(c)(1), (d), 8 U.S.C. § 1186a(c)(1),
(d); Matter of Mensah, 28 I&N Dec. 288, 290 (BIA 2021). If they establish
the bona fides of the marriage, and there are no other disqualifying factors,
the conditions on residence are lifted. Matter of Bador, 28 I&N Dec. at 641.
If, however, USCIS determines that the qualifying marriage was entered into
for the purpose of procuring admission as an immigrant, has been judicially
annulled or terminated other than through death, or a payment was made for
1 	Recognizing that some marriages may be entered into in good faith yet still fail, a
conditional permanent resident who is unable to file jointly with a spouse or former spouse
may be eligible for a discretionary waiver. See INA § 216(c)(4), 8 U.S.C. § 1186a(c)(4);
8 C.F.R. § 1216.5(a)(1) (2023). The conditional permanent resident must establish that
their removal would result in extreme hardship, that they entered into the marriage in good
faith despite it having ended, or that they have been subjected to battery or extreme cruelty
by the United States citizen. See INA § 216(c)(4), 8 U.S.C. § 1186a(c)(4); Matter of Bador,
28 I&N Dec. at 642.

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the filing of the petition (other than attorney preparation), USCIS “shall
terminate the permanent resident status.” 	INA § 216(b)(1)(A), 8 U.S.C.
§ 1186a(b)(1)(A). 	After terminating the conditional permanent resident
status, DHS “shall issue a notice to appear.” 8 C.F.R. § 1216.3(a) (2023).
Congress 	has 	provided 	that 	a 	decision 	by 	USCIS 	to 	terminate 	a
noncitizen’s conditional permanent resident status is reviewable in removal
proceedings by the Immigration Judge. 	See INA § 216(b)(2), (c)(3)(D),
8 U.S.C. § 1186a(b)(2), (c)(3)(D). Under current regulations, this is the only
permitted avenue for review. 	See 8 C.F.R. § 1216.3(a); cf. 8 C.F.R.
§ 1216.5(f) (2023) (“No appeal shall lie from the decision of the director [to
deny a waiver of the joint filing requirement]; however, the alien may seek
review of such decision in removal proceedings.”). 	Where the basis for
USCIS’ denial of a Form I-751 petition is the denial of a waiver of the joint
filing requirement, the Immigration Judge reviews the denial of the waiver
as well. 	See 8 C.F.R. § 1216.5(f); Matter of Bador, 28 I&N Dec. at 642
(collecting authority); see also Matter of Herrera Del Orden, 25 I&N Dec.
589, 593–95 (BIA 2011) (discussing the scope of the Immigration Judge’s
review of the denial of an applicant’s request for a waiver of the joint filing
requirement).
B. Review of Denials of Petitions to Remove Conditions of Residence
The 	decision 	by 	DHS 	to 	commence 	removal 	proceedings 	is 	not
reviewable by Immigration Judges or this Board. 2 E.g., Matter of J-A-B- &
I-J-V-A-, 27 I&N Dec. at 170; Matter of Bahta, 22 I&N Dec. 1381, 1391
(BIA 2000); Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998). After a
case is filed, however, the “[DHS] merely has the privilege to move for
dismissal of proceedings.” 	Matter of G-N-C-, 22 I&N Dec. at 284. 	The
Immigration 	Judge 	must, 	consistent 	with 	the 	authority 	noted 	above,
independently adjudicate the motion. See id. (noting the regulation does not
contemplate an automatic grant). 3
2 	Additionally, a noncitizen has no right to be placed in removal proceedings by DHS for
the purpose of seeking relief. See Matter of Andrade Jaso and Carbajal Ayala, 27 I&N
Dec. 557, 558–59 (BIA 2019) (granting DHS’ motion to dismiss removal proceedings
under 8 C.F.R. § 239.2(a)(7) (2018) because the respondent filed a meritless asylum
application with USCIS for the sole purpose of seeking cancellation of removal in removal
proceedings).
3 	In some cases, the parties may agree to terminate proceedings. See Matter of Coronado
Acevedo, 28 I&N Dec. at 650; cf. Matter of A-C-A-A-, 28 I&N Dec. 351, 352 (A.G. 2021)
(permitting the Board to rely on stipulations and DHS’ decision not to contest certain issues
because this “approach helps ensure efficient adjudication by focusing the immigration
courts’ limited resources on the issues that the parties actually contest rather than those on
which they agree”). Here, however, the parties are not in agreement on the appropriate

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The respondent maintains that the inability of DHS to locate its file is not
an enumerated ground upon which the regulations permit DHS to seek
termination of proceedings. See 8 C.F.R. § 239.2(a), (c) (2023). However,
the question before us is not on what grounds DHS may make a motion to
terminate, but the scope of the Immigration Judge’s authority to adjudicate
such a motion and the order in which the Immigration Judge should address
multiple potentially dispositive issues.
Because DHS does not have unilateral authority to cancel a Notice to
Appear once removal proceedings have commenced, DHS’ motion to
terminate constituted a request that the Immigration Judge exercise his
authority to terminate the proceedings. See Matter of G-N-C-, 22 I&N Dec.
at 284. 	The Immigration Judge has authority to adjudicate this request
“based on an evaluation of the factors underlying the [DHS’] motion.” 	Id.
The Immigration Judge erred in concluding that he was required to terminate
proceedings simply because DHS had moved to do so. 	Instead, the
Immigration Judge should have adjudicated the motion after considering the
underlying 	facts 	and 	circumstances. 	Because 	the 	Immigration 	Judge
mistakenly concluded that DHS’ motion divested him of jurisdiction, he did
not consider the respondent’s interest in obtaining review of USCIS’ denial
of his Form I-751 petition.
The respondent’s interest in having an Immigration Judge review USCIS’
denial of a Form I-751 is significant. Regulations provide that when USCIS
terminates conditional permanent resident status by denying a Form I-751,
there is no appeal from that decision to any higher authority within USCIS,
and the noncitizen must be placed in removal proceedings. 	8 C.F.R.
§ 1216.3(a). At that point, the denial of the Form I-751, and any associated
waivers, is reviewable only by the Immigration Judge. See INA § 216(b)(2),
(c)(3)(D), 	8 	U.S.C. 	§ 	1186a(b)(2), 	(c)(3)(D); 	8 	C.F.R. 	§§ 	1216.3(a),
1216.5(f); Matter of Bador, 28 I&N Dec. at 642.
We explained in Matter of Mendes, 20 I&N Dec. 833, 839 (BIA 1994),
that when an Immigration Judge terminates removal proceedings without
first reviewing the denial of a Form I-751, the respondent is left in “legal
limbo” as he or she is “no longer a lawful permanent resident, yet [he or] she
also has not been found deportable.” That “legal limbo” is not simply being
out of lawful immigration status, but the inability to access the sole form of
review 	expressly 	provided 	for 	by 	law. 	Given 	the 	significance 	of 	a
respondent’s interest in securing review of a denial of a petition to remove
the 	conditions 	on 	permanent 	residence, 	an 	Immigration 	Judge 	should
ordinarily review the denial of a Form I-751 upon the request of the
disposition of this case, as the respondent objected to DHS’ motion to terminate.
Accordingly, this decision does not address joint or unopposed motions to terminate.

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respondent. We will therefore remand this matter to the Immigration Judge
to undertake that review.
ORDER: The appeal is sustained, the Immigration Judge’s decision is
vacated, and removal proceedings are reinstated.
FURTHER ORDER: 	The record is remanded to the Immigration
Court for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.