BIA decision pushes back on DHS-requested dismissals of immigration court cases over noncitizens’ objections

On December 20, 2023, the Board of Immigration Appeals issued a precedent decision in Matter of H.N. Ferreira, 28 I&N Dec. 765 (BIA 2023). In H.N. Ferreria, the Board found the Immigration Judge had erred in concluding that he was required to terminate proceedings simply because the Department of Homeland Security (DHS) had moved to do so. With DHS seeking to clear nonpriority cases from the docket, it has frequently moved to dismiss cases even where the noncitizen would prefer to proceed with their case to seek relief from removal in immigration court. See OPLA FAQs on Prosecutorial Discretion (indicating that even where a noncitizen prefers to pursue relief before an immigration judge, DHS attorneys may unilaterally seek dismissal from the court).

In H.N. Ferreira, the noncitizen had been referred to removal proceedings after USCIS denied an I-751 petition to remove conditions.  In that circumstance, the noncitizen has a right to immigration court review of the USCIS denial.

But the Board’s rationale is applicable to other circumstances as well. The Board found that it is error for an Immigration Judge to simply terminate a case because DHS attorneys request termination. Instead, the immigration judges should adjudicate a DHS motion after considering the underlying facts and circumstances.  Such facts and circumstances should include the noncitizen’s interest in getting an adjudication of an application for relief from removal.  They should also include the time and resources the noncitizen has already invested in preparing the application for relief from removal for the immigration court. H.N. Ferreira should be a valuable tool for noncitizens and their attorneys in pushing back against immigration judge’s dismissing cases over their objection.