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BIA Holds That An Immigration Judge Has The Authority To Dismiss Removal Proceedings Per 8 C.F.R. §239.2(a)(7) Upon A Finding That Respondent Abused The Asylum Process By Filing A Meritless Asylum Application With USCIS For The Sole Purpose Of Seeking Cancellation Of Removal In The Immigration Court.

July 15, 2019 Philip Levin

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).  

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Filed Under: Asylum, Department of Homeland Security, Removal, Withholding of Removal Tagged With: Master Hearing

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.