S-O-G- & F-D-B-

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Matter of S-O-G- & F-D-B-, Respondents
Decided by Attorney General September 18, 2018
U.S. Department of Justice
Office of the Attorney General
(1) Consistent with Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), immigration
judges have no inherent authority to terminate or dismiss removal proceedings.
(2) Immigration judges may dismiss or terminate removal proceedings only under the
circumstances expressly identified in the regulations, see 8 C.F.R. § 1239.2(c), (f), or
where the Department of Homeland Security fails to sustain the charges of removability
against a respondent, see 8 C.F.R. § 1240.12(c).
(3) An immigration judge’s general authority to “take any other action consistent with
applicable law and regulations as may be appropriate,” 8 C.F.R. § 1240.1(a)(1)(iv), does
not provide any additional authority to terminate or dismiss removal proceedings
beyond those authorities expressly set out in the relevant regulations.
(4) To avoid confusion, immigration judges and the Board should recognize and maintain
the distinction between a dismissal under 8 C.F.R. § 1239.2(c) and a termination under
8 C.F.R. § 1239.2(f).
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I direct the Board of
Immigration Appeals to refer these cases to me for review of its decisions.
For the reasons set forth in the accompanying opinion, I affirm the Board’s
decision in Matter of S-O-G- and vacate the Board’s decision in Matter of
F-D-B-. I remand Matter of F-D-B- to the immigration judge for further
proceedings in accordance with the opinion.
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), I directed the Board of
Immigration Appeals (“Board”) to refer to me its decisions in these matters.
In each of these matters, the Board considered an immigration judge’s order
ending removal proceedings. 	In one case a motion to dismiss was filed by
the Department of Homeland Security (“DHS”), and in the other a motion to
terminate was filed by the respondent. 	I granted review of these two cases
to provide guidance on the appropriate standard by which immigration
judges and the Board should evaluate such motions. 	Because the relevant
regulation is clear, I concluded that additional briefing was unnecessary.
For the reasons set forth in the accompanying opinion, I affirm the
Board’s July 23, 2018, decision in Matter of S-O-G-, and I vacate the Board’s

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July 18, 2018, decision in Matter of F-D-B- and remand that matter to the
immigration judge for further proceedings.
There is no question that immigration judges have authority to dismiss
and terminate removal proceedings under certain defined circumstances.
I hold, however, that consistent with my opinion in Matter of Castro-Tum,
27 I&N Dec. 271 (A.G. 2018), immigration judges have no inherent authority
to terminate or dismiss removal proceedings. 	Accordingly, they may not
terminate or dismiss those proceedings for reasons other than those expressly
set out in the relevant regulations or where DHS has failed to sustain the
charges of removability.
I.
In each of the referred matters, the Board considered an immigration
judge’s order ending removal proceedings. These orders reflect the divergent
approaches the immigration courts have taken in reviewing motions to
dismiss or terminate pending cases. 	In S-O-G-, the Board held that the
immigration 	judge 	correctly 	concluded 	proceedings 	after 	finding 	the
regulatory standard for “termination” had been met. 	In F-D-B-, the Board
held that, “[u]nder the particular facts and circumstances of [the] case,” the
immigration court had “appropriate[ly]” invoked its crowded docket and its
“discretion” to terminate removal proceedings, slip op. at *1 (BIA July 18,
2018). 	I certified these matters to resolve the division of authority, correct
legal error, and confirm the proper legal standard for dismissal or termination
of removal proceedings.
A.
DHS initiated the certified proceedings against Respondent S-O-G-, a
citizen of Mexico, by a Notice to Appear, dated March 15, 2015, charging
removability pursuant to section 212(a)(6)(A)(i) of the Immigration and
Nationality Act (“INA”). S-O-G- conceded removability and indicated her
intention to file an application for relief or protection from removal. No such
applications were filed with the immigration judge. 	During the course of
subsequent removal proceedings, DHS learned that S-O-G- had previously
been subject to an in absentia removal order, which had become final on July
29, 2002. Consequently, on July 26, 2017, DHS moved “to dismiss the case”
without prejudice. 	Matter of S-O-G-, Hearing Transcript at 24 (Immig. Ct.
July 26, 2017). 	The immigration judge granted DHS’s motion—which he
referred to as a “motion for termination of these proceedings”—because the
respondent was already the subject of a final order of removal. Id. at 25−27.

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S-O-G- appealed to the Board, 	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 Board affirmed, explaining that DHS “is afforded 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.” Matter of S-O-G-, slip op. at *1
(BIA July 23, 2018).
Once jurisdiction has vested, “[a]n immigration [j]udge may terminate
proceedings where the DHS moves to dismiss the Notice to Appear on the
basis 	of 	one 	of 	the 	grounds 	contained 	in 	the 	regulations, 	and 	the
[i]mmigration [j]udge finds dismissal appropriate.” 	Id. 	The Board found
that “DHS’s motion comports with the governing regulations which provide
that, after commencement of proceedings, counsel may move for dismissal
if the Notice to Appear was improvidently issued . . . or if for other reasons,
the DHS has decided that continuation is no longer in the best interest of the
government.” 	Id. at *2. 	The Board rejected S-O-G-’s argument that the
immigration judge’s order had violated her due process rights.
B.
Respondent F-D-B-, a citizen of Brazil, entered the United States illegally
in 2004. 	DHS placed her into removal proceedings and charged her with
removability under section 212(a)(6)(A)(i) of the INA. She failed to appear
for her proceedings as required in 2004, and the immigration judge ordered
her removed in absentia. On December 9, 2013, F-D-B- filed an unopposed
motion to reopen and rescind her in absentia order. 	After the immigration
judge reopened, F-D-B- conceded removability. 	In 2016, after she had
obtained a visa as an alien relative, her case was administratively closed
pending the adjudication of her application for a provisional unlawful
presence waiver.
After obtaining the provisional waiver and the recalendaring of her case
before the immigration judge, F-D-B- moved on December 14, 2017, to
terminate the removal proceeding. 	She explained that she intended to
complete the necessary consular processing 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. 	The immigration judge granted the motion and terminated
without prejudice.
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

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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. Matter of F-D-B-, Order on
Motion to Terminate Proceedings at *1 (Immig. Ct. Dec. 14, 2017).
DHS appealed. 	On July 18, 2018, the Board 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.” 	F-D-B-,
slip op. at *1 (BIA July 18, 2018). 	Consequently, based on “the particular
facts and circumstances of [the] case,” the Board concluded that “termination
of the respondent’s removal proceedings without prejudice was appropriate.”
Id.
II.
The INA vests DHS with the exclusive authority to place aliens in
removal proceedings. Castro-Tum, 27 I&N Dec. at 289; see also Matter of
W-Y-U-, 	27 	I&N 	Dec. 	17, 	19 	(BIA 	2017). 	DHS 	initiates 	removal
proceedings by issuing, serving, and filing a Notice to Appear identifying the
charges against a respondent. 	INA § 239(a), 8 U.S.C. § 1229(a); 8 C.F.R.
§ 1003.14(a) (removal proceedings “commence” when DHS files the Notice
to Appear with the immigration court). 	DHS may unilaterally cancel a
Notice to Appear under certain enumerated circumstances before jurisdiction
vests with the immigration judge. See 8 C.F.R. § 239.2(a).
Once jurisdiction vests, however, the statutory power to supervise
immigration proceedings resides with the Attorney General. 	See INA
§ 103(a)(1), (g), 8 U.S.C. § 1103(a)(1), (g). 	And as I recently reiterated,
immigration judges may “exercise only the authority provided by statute or
delegated by the Attorney General.” 	Castro-Tum, 27 I&N Dec. at 283
(emphasis added). 	This is particularly so in the context of dismissal and
termination, 	dispositions 	that 	implicate 	both 	the 	carefully 	defined
jurisdictional scheme set forth by the INA and the inherent prosecutorial
discretion of DHS. See Matter of Roussis, 18 I&N Dec. 256, 257−58 (BIA
1982) (explaining that immigration judges may not simply cede their
jurisdiction “when practical and equitable considerations dictate”).
As the Board has explained, “[i]t is well settled that an [i]mmigration
[j]udge may only ‘terminate proceedings when the DHS cannot sustain the
charges [of removability] or in other specific circumstances consistent with
the law and applicable regulations.’” Matter of J-A-B- & I-J-V-A-, 27 I&N

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Dec. 168, 169 (BIA 2017) (quoting Matter of Sanchez-Herbert, 26 I&N Dec.
43, 45 (BIA 2012) (second alteration in original)). 	As relevant here, on
motion by DHS, an immigration judge may dismiss the proceedings where
“[t]he 	[N]otice 	to 	[A]ppear 	was 	improvidently 	issued” 	or 	the
“[c]ircumstances of the case have changed after the [N]otice to [A]ppear 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)
(emphasis added).1
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. See, e.g.,
INA § 240, 8 U.S.C. § 1229a; 8 C.F.R. § 1239.2. 	An immigration judge’s
general authority to “take any other action consistent with applicable law and
regulations as may be appropriate,” see 8 C.F.R. § 1240.1(a)(1)(iv), is no
exception. 	Given that the provision does not permit the immigration judge
to suspend indefinitely a respondent’s removal proceedings, see Castro-Tum,
27 I&N Dec. at 285, the provision similarly cannot be read to provide the
authority to end removal proceedings entirely. 	Such an action would both
exceed the authorized bases for dismissal or termination in the regulations
and conflict with the limited authority to dismiss or terminate removal
proceedings under 8 C.F.R. § 1239.2. 	The INA requires that “[a]t the
conclusion of the proceeding the immigration judge shall decide whether an
1 	Department of Justice regulations also confer authority on immigration judges to
dismiss or terminate proceedings in other circumstances. See, e.g., 8 C.F.R. §§ 1216.4(a)(6)
(authorizing termination of removal proceedings after an alien obtains lawful permanent
residence on a conditional basis on joint motion by the alien respondent and DHS),
1235.3(b)(5)(iv) (“If the immigration judge determines that the alien was once so admitted
as a lawful permanent resident or as a refugee, or was granted asylum status, or is a U.S.
citizen, and such status has not been terminated by final administrative action, the
immigration judge will terminate proceedings and vacate the expedited removal order.”),
1238.1(e) (permitting termination, upon DHS request, in “any proceeding commenced
under section 240 of the [INA] which is based on deportability under section 237 of the
[INA], if it appears that the respondent alien is subject to removal pursuant to section 238
of the [INA]”; thereafter, DHS “may commence administrative proceedings under section
238 of the [INA]”), 1245.13(l) (instructing immigration judges to “deem terminated”
certain removal proceedings involving nationals of Nicaragua or Cuba if their application
for adjustment of status is granted). 	The record does not indicate that the parties here
moved to dismiss or terminate under any of these provisions.

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alien is removable from the United States.” 	INA § 240(c)(1)(A), 8 U.S.C.
§ 1229a(c)(1)(A) (emphasis added). Consistent with that authorization, the
immigration regulations give enforcement officials, not immigration judges,
general discretionary authority to cancel a Notice to Appear before removal
proceedings commence or to move for the dismissal of removal proceedings
after they have begun. 	See 8 C.F.R. § 1239.2(a), (c); see also 8 C.F.R.
§ 1239.1.
In S-O-G-, the immigration judge’s order and the Board’s opinion both
describe the relevant DHS motion as one to “terminate” the removal
proceeding, see 8 C.F.R. § 1239.2(f), but the record indicates that the parties
understood the motion to be one to dismiss pursuant to 8 C.F.R. § 1239.2(c)
and 8 C.F.R. § 239.2(a). 	Although “dismissal” and “termination” have
distinct meanings and different requirements under the regulations, they are
similar concepts in the context of concluding removal proceedings, and it is
not 	uncommon 	for 	immigration 	judges 	and 	the 	Board 	to 	use 	them
interchangeably 	or 	to 	conflate 	them 	under 	a 	common 	heading 	of
“termination.” 	To avoid confusion, immigration judges and the Board
should 	recognize 	and 	maintain 	the 	distinction 	between 	dismissal 	and
termination in the future. 	Nevertheless, I proceed here upon the parties’
understanding that DHS had moved to dismiss.2
Indeed, both the immigration judge and the Board applied the appropriate
regulatory standard for dismissal of a removal proceeding. The immigration
judge granted DHS’s motion because S-O-G- was already subject to a
removal order, a fact that DHS did not know when it served the Notice to
Appear. As the Board later found, dismissal was appropriate either as (1) an
occasion where the subsequent Notice to Appear was improvidently issued
because 	similar 	proceedings 	had 	already 	concluded, 	see 	8 	C.F.R.
§ 239.2(a)(6), or (2) an instance where DHS had demonstrated that moving
forward in this proceeding, duplicating its previous efforts, was not in the
best interests of the Government, see id. § 239.2(a)(7). 	I agree that either
theory was sufficient to affirm.
In F-D-B-, the immigration judge did not identify any statutory or
regulatory basis to justify terminating the removal proceedings. Instead, she
cited only the facts of the matter, the court’s “busy docket,” and her own
“discretion” to terminate the case. Similarly, the Board cited no legal basis
2 	To the extent the immigration judge or the Board erred by invoking incorrect
terminology, that error was harmless. 	Evidence in the record establishes that both the
immigration judge and the Board correctly applied the legal standard for dismissal set forth
in 8 C.F.R. § 1239.2(c), and the Board cited the appropriate regulation for dismissal despite
using the term “termination.” See generally Matter of Pollon-Rivas, A098 357 092, 2016
WL 1357925, at *2 (BIA Mar. 21, 2016) (invoking harmless error doctrine where an
apparent scrivener’s error did not prejudice the respondent).

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to 	affirm 	the 	termination, 	relying 	solely on 	“the 	particular 	facts 	and
circumstances of [the] case” to support its decision.
As discussed above, however, immigration judges have no inherent
authority to terminate removal proceedings even though a particular case
may pose sympathetic circumstances. 	The authority to terminate under
8 C.F.R. § 1239.2(f) is specific and circumscribed. Neither the immigration
judge’s order nor the Board’s opinion in F-D-B- evidences any effort to apply
that legal standard or cites any other relevant standard. 	Because the
immigration judge did not purport to exercise any specific regulatory or
delegated authority to terminate, and no such authority is apparent in the
record, her action cannot be sustained on appeal.
There is no question that immigration judges have the authority to dismiss
and terminate removal proceedings under the circumstances identified in the
regulations.3 See 8 C.F.R. § 1239.2. 	Immigration judges also possess the
authority 	to 	terminate 	removal 	proceedings 	where 	the 	charges 	of
removability against a respondent have not been sustained. 	See 8 C.F.R.
§ 1240.12(c); Sanchez-Herbert, 26 I&N Dec. at 44 (“If the DHS meets its
burden, the [i]mmigration [j]udge should issue an order of removal; if it
cannot, the [i]mmigration [j]udge should terminate proceedings.”). But the
authority to dismiss or terminate proceedings is not a free-floating power an
immigration judge may invoke whenever he or she believes that a case no
longer merits space on the docket. 	Rather, 8 C.F.R. § 1239.2 constrains
immigration judges’ discretion to ensure respect for the jurisdictional scheme
set forth by the INA and DHS’s role in initiating and prosecuting removal
cases.4 See Roussis, 18 I&N Dec. at 258 (“It has long been held that when
enforcement officials of the Immigration and Naturalization Service [now
DHS] 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.”).
Accordingly, I hereby affirm the Board’s July 23, 2018 decision in
S-O-G-and vacate the Board’s July 18, 2018 decision in F-D-B-. 	I remand
F-D-B- to the Board with instructions to remand to the immigration judge for
further proceedings consistent with this opinion.
3 	There is, however, reason to doubt whether the Board also possesses the authority to
terminate removal proceedings pursuant to section 1239.2(f) given the plain text of that
regulation. 	See 8 C.F.R. § 1239.2(f) (stating only that “[a]n immigration judge may
terminate removal proceedings” (emphasis added)). This question is beyond the scope of
this opinion, and I do not address it here.
4 	This 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).