SESSIONS CONTINUES TO RESTRICT U.S. IMMIGRATION JUDGES’ DISCRETION TO TAKE LOW PRIORITY CASES OFF DOCKET – Insists That Immigrants Must Be Forced To Leave Even If They Have Already Qualified For Immigrant Status, Got Hardship Waivers, & Merely Awaiting Consular Interview – Matter of S-O-G- & F-D-B-, 27 I&N DEC. 462 (A.G. 2018)

Matter of S-O-G- & F-D-B-, 27 I&N DEC. 462 (A.G. 2018)

HERE’S THE HEADNOTE:

(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).

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Sessions seems remarkably intent on limiting the independent discretion of U.S. immigration Judges. Obviously, he doesn’t trust them to deport enough folks.

The first case, S-O-G-, appears pretty “plain vanilla.” The BIA and the Immigration Judges lack authority to review an exercise of prosecutorial discretion by the DHS. It’s a long-standing rule. Not quite sure why it merited an AG precedent, since the BIA got it right and there are other similar precedents out there.

In F-D-B-, Sessions obsesses because an Immigration Judge had the audacity to let someone who had qualified for permanent legal immigration await a visa interview in the United States, instead of being forced to “voluntarily deport’ under threat of deportation and spend part of the waiting time in Brazil. It isn’t clear why Sessions thinks it’s important to force IJs to docket and redocket this type of case in a system with a mushrooming backlog of approximately 750,000 cases. But, he did.

Bottom line: Before “terminating” or “dismissing” any case for anything other than the DHS’s failure to prove removability, the Immigration Judge must check with the DHS and get their permission. The DHS, not the Immigration Judge, controls the Immigration Courts’ docket.

PWS

09-19-18

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