Matter of S-O-G- & F-D-B- (A.G. 2018)

Decided September 18, 2018

This is a not so exciting sequel to the Attorney General’s earlier decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018).  In that case, the Attorney General Jeff Sessions basically eliminated the Immigration Court’s ability to administratively close cases.  That was a huge blow to immigrants.  This case limits the right of the Immigration Court to “dismiss” and “terminate” proceedings in some circumstances, something not quite as significant.  In the F-D-B- portion of the case, the immigrant had been granted a marriage visa, asked for his case to be administratively closed in order to qualify for a provisional (stateside waiver), and once granted the waiver, requested termination of the case so as not to self-deport when traveling abroad to consular process back into the United States.  DHS wanted him to obtain “voluntary departure” instead.  The judge granted the motion to terminate, the BIA affirmed and the AG overruled.  According to the AG:

The reason this is not a significant case is because circumstances where the Immigration Judge would “dismiss” or “terminate” a case rather than “administratively close” a case were limited.  Since Matter of Castro-Tum, with the ability to administratively close cases eliminated, the incidents of termination for reasons other than DHS’s failure to sustain charges were very rare.  This case also does not prevent the Immigration Judge from terminating a case where DHS cannot sustain the grounds of removability, or when otherwise permitted by statute, namely 8 C.F.R § 1239.2(f) for circumstances when the immigrant has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors.  However, the AG now requires immigration judges to specify whether they are “dismissing” a case or “terminating” a case and pursuant to which regulation.