Attorney General Restricts Judges’ Discretion to Terminate Deportation Cases

Ruling is two cases before him, Attorney General Jeff Sessions determined that immigration court judges may not end removal proceedings unless DHS has failed to prove its case for deportation or regulations expressly authorize it. His ruling notes that “immigration judges have no inherent authority to terminate or dismiss removal proceedings,” and that “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.” 

Immigration courts are administrative bodies that fall under the control of the Department of Justice. Rulings of immigration court judges can be appealed to the Board of Immigration Appeals and the attorney general can rewrite opinions of the Board. This ruling involves Board decisions in the Matters of S-O-G- & F-D-B.

AG Sessions wrote, “The (Immigration and Naturalization Act or INA) vests DHS with the exclusive authority to place aliens in removal proceedings….DHS initiates removal proceedings by issuing, serving, and filing a Notice to Appear identifying the charges against a respondent…DHS may unilaterally cancel a Notice to Appear…before jurisdiction vests with the immigration judge…Once jurisdiction vests, however, the statutory power to supervise immigration proceedings resides with the Attorney General…And as I recently reiterated, immigration judges may ‘exercise only the authority provided by statute or delegated by the Attorney General.’ 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.” 
 
AG Sessions said the INA and regulations issued thereunder only allow an immigration judge to terminate proceedings when: DHS requests dismissal; DHS cannot prove the case for removal; the Notice to Appear was improperly issued; or the “circumstances have changed to such an extent that continuation is no longer in the best interest of the government.” 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.”

Axios reports AG Sessions recently decided to review another Board of Immigration Appeals decision in the Matter of M-G-G. The case involves whether asylum-seekers who initially establish “credible fear” have a right to a bond hearing. Under a Board ruling, a hearing must be held to determine if the alien is released into the U.S. pending an asylum hearing or held in detention. If AG Sessions limits the circumstances under which this hearing must be held, many more aliens will be subject to mandatory detention.

In February, the Supreme Court ruled that detained asylum-seekers are not entitled to bond hearings throughout their detention. AG Sessions, who is expected to rule on M-G-G within the next few months, is likely to rely on that decision for guidance.

Through this review process, AG Session has already strengthened the credible fear standard, directed immigration judges to stop delaying removal cases through administrative closure, and determined asylum-seekers and applicants for withholding of removal do not have a right to a full hearing after their paperwork deems them ineligible for asylum. 

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