On May 31, 2019, the Board of Immigration Appeals (BIA or Board) dismissed an appeal by respondents of the granting by an Immigration Judge (IJ) of a DHS motion to dismiss removal proceedings without prejudice. Respondents had filed applications for political asylum with USCIS but, on the advice of counsel, had not appeared for their asylum interview, which resulted in their being referred to Immigration Court. At the first Master Calendar Hearing, the same attorney withdrew their asylum applications and applied for cancellation of removal. DHS subsequently filed its motion to dismiss, contending that the circumstances of the case has changed so much that “continuation of the proceedings was no longer in the best interest of the Government,” noting also the “questionable manner” in which respondents changed the requested form of relief “at their first opportunity” after failing to appear “without explanation” at their asylum interview. The IJ found the asylum applications had been meritless and that respondents had affirmatively by elected not to appear, also choosing not to request rescheduling. This conduct by respondents and counsel, the IJ held, “constituted an abuse of the asylum process” and he granted the motion.
In its analysis, the BIA first noted that DHS may unilaterally cancel a notice to appear (NTA) before jurisdiction vests with the IJ but that, once jurisdiction vests, the Department may only move for dismissal “for certain specified reasons,” including where the circumstances of the case have changed after the NTA is issued “to such an extent that continuation is no longer in the best interest of the government,” citing to 8 C.F.R. §§239.2(a)(7) and 1239.2(a) and (c). After agreeing that the IJ may grant a DHS motion to dismiss where he or she finds that a meritless asylum application was filed for the sole purpose of having a respondent referred to Immigration Court to file for cancellation and that such conduct constitutes an abuse of the asylum process, the Board addressed respondents’ arguments.
As to the contention that DHS had failed to show any change in circumstances after the NTAs were issued, as the failure to appear for the asylum interview took place before issuance, the opinion found that respondents’ withdrawal of their asylum applications at the first hearing “constitutes a change in circumstances that occurred after the issuance of the notices to appear. [Emphasis in original.]” Additionally, concluded the Board, respondents’ actions after applying for asylum changed the circumstances of their case to such an extent that continuation of the proceedings was no longer in the government’s best interest, so the motion was held to have been “based on a valid ground for dismissal” under the above-referenced regulations.
Regarding respondents’ claim that, by dismissing the proceedings without adjudicating their cancellation applications, the IJ violated their due process rights, the decision cited 9th Circuit case law for the conclusion that a desire to regularize one’s immigration status through discretionary relief does not entitle an applicant “to the commencement and continuation of removal proceedings.” Additionally, stated the BIA, the IJ’s dismissal was without prejudice, respondents were not ordered removed and “there is no indication that they are in imminent danger of removal”; if placed back into proceedings by the service of new NTAs, respondents can at that time pursue any form of relief, including cancellation, for which they may be eligible. Therefore, the IJ’s granting of DHS’s motion was proper and the appeal was ordered dismissed. Matters of Andrade Jaso and Carbajal Ayala, 27 I&N Dc. 557 (BIA 2019).
