On September 18, 2018, Attorney General Jeff Sessions issued Matter of S-O-G & F-D-B, 27 I & N Dec. 462 (A.G. 2018), the latest in a trifecta of cases curtailing the authority of immigration judges. Under this new ruling, judges are strictly prohibited from terminating or dismissing cases "for reasons other than those expressly set out in the relevant regulations or where DHS has failed to sustain the charges of removability." As it stands, the regulations set out only a limited number of circumstances under which the court may dismiss proceedings. On motion by DHS government counsel, a judge may dismiss proceedings where
· The Notice to Appear was improvidently issued
· 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
Judges may also terminate to allow a person to pursue naturalization when he/she has established prima facie eligibility and the matter involves exceptionally appealing or humanitarian factors. Besides these circumstances and a small set of scenarios cited by the decision, "in every other case, the removal hearing shall be completed as promptly as possible."
What this essentially means, in practical terms, is that judges are no longer allowed to exercise their discretion to terminate cases, as they have been doing when appropriate. In one of the cases involved, for example, the immigration judge had terminated proceedings, over the objection of the government, after the respondent had obtained approval of her I-601A provisional waiver. The government had argued that instead of termination, the respondent should have sought voluntary departure, which also puts an end to the case. But unlike termination, voluntary departure would compel her to depart the United States much earlier than anticipated and risk complications at the consulate abroad-something which the court and the BIA on appeal both recognized, but which did not persuade the Attorney General. As a consequence, termination of proceedings may no longer be a viable option for individuals with similar situations.
Together with Matter of Castro-Tum, which eviscerates the court's ability to administratively close cases, and Matter of L-A-B-R, which hamstrings the court's power to grant continuances, this ruling clearly demonstrates the Attorney General's resolve to wrest control of the courts to implement stricter standards in line with the current Administration's mandate.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.