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Matter of H. N. FERREIRA, 28 I&N Dec. 765 (BIA 2023)

December 19, 2023 (1 min read)

Matter of H. N. FERREIRA, 28 I&N Dec. 765 (BIA 2023)

"This case requires us to reconcile an Immigration Judge’s regulatory authority to terminate removal proceedings with a respondent’s interest in having the Immigration Judge review USCIS’ denial of a Form I-751. ... The respondent maintains that the inability of DHS to locate its file is not an enumerated ground upon which the regulations permit DHS to seek termination of proceedings. See 8 C.F.R. § 239.2(a), (c) (2023). However, the question before us is not on what grounds DHS may make a motion to terminate, but the scope of the Immigration Judge’s authority to adjudicate such a motion and the order in which the Immigration Judge should address multiple potentially dispositive issues. Because DHS does not have unilateral authority to cancel a Notice to Appear once removal proceedings have commenced, DHS’ motion to terminate constituted a request that the Immigration Judge exercise his authority to terminate the proceedings. ... The Immigration Judge erred in concluding that he was required to terminate proceedings simply because DHS had moved to do so. Instead, the Immigration Judge should have adjudicated the motion after considering the underlying facts and circumstances. Because the Immigration Judge mistakenly concluded that DHS’ motion divested him of jurisdiction, he did not consider the respondent’s interest in obtaining review of USCIS’ denial of his Form I-751 petition. The respondent’s interest in having an Immigration Judge review USCIS’ denial of a Form I-751 is significant. ... Given the significance of a respondent’s interest in securing review of a denial of a petition to remove the conditions on permanent residence, an Immigration Judge should ordinarily review the denial of a Form I-751 upon the request of the respondent. We will therefore remand this matter to the Immigration Judge to undertake that review. ORDER: The appeal is sustained, the Immigration Judge’s decision is vacated, and removal proceedings are reinstated. FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision."

[Hats off to Jan Joseph Bejar!]