(1) Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), is overruled.
(2) Pending the outcome of the rulemaking process, immigration judges and the Board of Immigration of Appeals may consider and, where appropriate, grant termination or dismissal of removal proceedings in certain types of limited circumstances, such as where a noncitizen has obtained lawful permanent residence after being placed in removal proceedings, where the pendency of removal proceedings causes adverse immigration consequences for a respondent who must travel abroad to obtain a visa, or where termination is necessary for the respondent to be eligible to seek immigration relief before United States Citizenship and Immigration Services
The Attorney General has issued a decision in Matter of CORONADO ACEVEDO, 28 I&N Dec. 648 (A.G. 2022).
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648
Matter of CORONADO ACEVEDO, Respondent
Decided by Attorney General November 17, 2022
U.S. Department of Justice
Office of the Attorney General
(1) Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), is overruled.
(2) Pending the outcome of the rulemaking process, immigration judges and the Board of
Immigration of Appeals may consider and, where appropriate, grant termination or
dismissal of removal proceedings in certain types of limited circumstances, such as
where a noncitizen has obtained lawful permanent residence after being placed in
removal proceedings, where the pendency of removal proceedings causes adverse
immigration consequences for a respondent who must travel abroad to obtain a visa, or
where termination is necessary for the respondent to be eligible to seek immigration
relief before United States Citizenship and Immigration Services.
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer this case to me for my review. With the case thus
referred, I hereby vacate the Board’s decision in this matter, overrule Matter
of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), which formed the basis
for the Board’s decision, and remand to the Board for further proceedings
consistent with this opinion.
S-O-G- & F-D-B- involved the authority of immigration judges to end
removal proceedings, which is referred to as “terminating” or “dismissing” a
removal proceeding.1 Certain regulations expressly authorize termination or
dismissal in specified circumstances. See, e.g., 8 C.F.R. §§ 1216.4(a)(6),
1238.1(e), 1239.2(c), 1239.2(f). In addition, under Board precedent, cases
may be terminated where the immigration judge determines the removability
charges cannot be sustained. See S-O-G- & F-D-B-,
Before S-O-G- & F-D-B-, immigration judges and the Board found
termination appropriate in other, narrow circumstances as well. For instance,
adjudicators terminated proceedings where, following the commencement of
proceedings, the respondent was granted lawful permanent residence or other
1 In S-O-G- & F-D-B-, Attorney General Sessions noted that the concepts of “dismissal”
and “termination” are “similar,” but explained that the labeling distinction can be relevant
when a movant seeks to invoke a specific regulatory provision that authorizes “dismissal”
as opposed to “termination.” 27 I&N Dec. at 467. This labeling distinction is not material
when a movant asks an immigration judge or the Board to end a case pursuant to a provision
that does not use one of those labels. Except where a distinction between the two terms
exists in regulations, this opinion refers to “termination” and “dismissal” interchangeably.
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immigration status by United States Citizenship and Immigration Services
(“USCIS”). Adjudicators also terminated proceedings where the respondent
needed to travel abroad to obtain a visa but could not do so while removal
proceedings were pending without risking serious adverse immigration
consequences. See, e.g., Garcia-DeLeon v. Garland, 999 F.3d 986, 992 (6th
Cir. 2021). And adjudicators found termination appropriate in certain cases
where a respondent wished to seek immigration relief, such as adjustment to
lawful permanent status, before USCIS. See, e.g., 8 C.F.R. § 1245.2(a)(1)(ii)
(stating that, subject to exceptions, USCIS, and not an immigration judge,
has jurisdiction to adjudicate an application for adjustment of status filed by
an arriving alien); 6 USCIS Policy Manual pt. J, ch. 4 n.2 (“If a [noncitizen
with special immigrant juvenile classification] is in removal proceedings, the
immigration court must terminate the proceedings before USCIS can
adjudicate the adjustment application.”).
In S-O-G- & F-D-B-, Attorney General Sessions held that “immigration
judges have no inherent authority to terminate or dismiss removal
proceedings.” 27 I&N Dec. at 463. That conclusion relied heavily upon
Attorney General Sessions’s prior opinion in Matter of Castro-Tum, which
concerned the practice of administrative closure, “a docket management tool
that is used to temporarily pause removal proceedings,” Matter of W-Y-U-,
27 I&N Dec. 17, 18 (BIA 2017) (emphasis added), and “remove a case from
an Immigration Judge’s active calendar or from the Board’s docket,” Matter
of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012). In Castro-Tum, Attorney
General Sessions determined that immigration judges and the Board have no
(A.G. 2018). Castro-Tum reasoned that 8 C.F.R. § 1240.1(a)(1)(iv), which
authorizes immigration judges to “take any other action consistent with
applicable law and regulations as may be appropriate,” does not grant
“authority to make procedural rulings within the proceeding, such as the
granting of administrative closure.” 27 I&N Dec. at 285. Relying on that
holding, S-O-G- & F-D-B- explained that, “[g]iven that the provision does
not permit the immigration judge to suspend indefinitely a respondent’s
removal proceedings,” it “similarly cannot be read to provide the authority
to end removal proceedings entirely.” 27 I&N Dec. at 466 (citing
Castro-Tum, 27 I&N Dec. at 285).2 Accordingly, the Attorney General held
that immigration judges may not order termination or dismissal except in the
“specific and circumscribed” circumstances expressly authorized by
2 Castro-Tum also concluded that administrative closure was not authorized by 8 C.F.R.
§§ 1003.1(d)(1)(ii) and S-O-G- & F-D-B- did not
discuss those provisions. But see Gonzalez v. Garland
2021) (concluding that the plain language of these provisions authorizes termination).
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regulation or where the Department of Homeland Security (“DHS”) cannot
sustain the removability charges. Id. at 468.3
In this case, DHS initiated removal proceedings against respondent,
a citizen of Mexico, by filing a Notice to Appear charging her with
deportability under section 237(a)(1)(B) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(1)(B) (present in violation of immigration law).
While respondent’s case was pending before the immigration court, her
husband, a U.S. citizen, filed on her behalf a petition for an immediate
relative immigrant visa with USCIS. See Matter of Coronado Acevedo, Oral
Decision of the Immigration Judge at *2 (Immig. Ct. Apr. 15, 2019).
Respondent requested a continuance to allow USCIS to adjudicate the visa
petition, which the immigration judge denied. Id. ion
judge then denied respondent’s application for cancellation of removal. Id.
While respondent’s appeal was pending before the Board, USCIS granted
the immigrant visa petition the respondent’s husband had filed on her behalf.
DHS then filed a motion, with respondent’s concurrence, to dismiss the
removal proceedings without prejudice. DHS stated that respondent “has an
approved visa petition and an immigrant visa immediately available to her,”
“has no criminal convictions that would render her inadmissible,” and
“appears at least facially eligible for adjustment of status . . . at this time.”
DHS Motion to Dismiss Without Prejudice at 1 (Apr. 3, 2021). DHS thus
asked the Board to dismiss the removal proceedings “to allow [respondent]
to apply for adjustment of status” before USCIS. Id. The Board denied
DHS’s motion to dismiss, concluding that S-O-G- & F-D-B- precluded the
Board from terminating or dismissing removal proceedings in respondent’s
case. See Matter of Coronado Acevedo, slip op. at *1 (BIA Mar. 17, 2022).
The Board also dismissed respondent’s appeal of the denial of cancellation
of removal. Id. at *3.4
I have now determined that S-O-G- & F-D-B- should be overruled. Last
year, I overruled Castro-Tum, explaining that three of the four courts of
appeals to consider the decision had rejected it—while even the fourth ruled
that administrative closure was authorized in some circumstances—and that
the Department was engaged in reconsideration of the relevant regulations
through notice-and-comment rulemaking. Matter of Cruz-Valdez, 28 I&N
3 Although S-O-G- & F-D-B- directly addressed the authority of immigration judges, the
Board has interpreted it to govern the Board’s authority as well.
4 On May 25, 2022, DHS and respondent filed a joint motion to reopen and dismiss
proceedings pursuant to 8 C.F.R. §§ 1003.2(c)(3)(iii) and 1239.2(c). That motion remains
pending before the Board. Respondent has also filed a petition for review of the Board’s
decision. Petition for Review, Coronado-Acevedo v. Garland, No. 22-623 (9th Cir. Apr. 1,
2022).
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Castro-Tum served as a central pillar of
Attorney General Sessions’s reasoning in S-O-G- & F-D-B-. The latter
opinion described its holding as “consistent with . . . Castro-Tum” and its
analysis flowed a fortiori from that decision. 27 I&N Dec. at 463, 466.
Perhaps for that reason, the Attorney General decided S-O-G-
& F-D-B- without briefing only four months after Castro-Tum.
The only court of appeals to directly review S-O-G- & F-D-B- has
rejected that decision for the same reason it previously rejected Castro-Tum.
In Gonzalez v. Garland, 16 F.4th 131 (4th Cir. 2021), the Fourth Circuit
explained that S-O-G- & F-D-B- conflicted with “the very same regulations”
it interpreted in its decision vacating Castro-Tum. Id.
Romero v. Barr, 937 F.3d 282 (4th Cir. 2019)). Because S-O-G- & F-D-B-
“relie[d] heavily on Castro-Tum,” the court concluded, “the fact that
Castro-Tum has been overruled should not only begin the analysis [of
S-O-G- & F-D-B-], but . . . should definitively end it.” Id. at 142. And two
other circuits have rejected Castro-Tum on grounds that would apply with
similar force to S-O-G- & F-D-B-. See Meza Morales v. Barr, 973 F.3d 656,
Arcos Sanchez v. Att’y Gen. U.S. of Am., 997 F.3d
5
The Department is currently reconsidering the regulations at issue in both
Castro-Tum and S-O-G- & F-D-B- and expects to issue a notice of proposed
rulemaking that would address the authority of immigration judges and the
Board to terminate removal proceedings. That rulemaking process will
“‘afford[] all interested parties a full and fair opportunity to participate and
ensure[] that the relevant facts and analysis are collected and evaluated.’”
Cruz-Valdez, 28 I&N Dec. at 329 (alterations in original) (quoting Matter of
Compean, 25 I&N Dec. 1, 2 (A.G. 2009)).
While that rulemaking process proceeds, I have determined that
S-O-G- & F-D-B- should be overruled in its entirety. The precedential basis
for that opinion has been significantly eroded by the overruling of
Castro-Tum. Moreover, S-O-G- & F-D-B- has imposed “rigid procedural
requirements that would undermine . . . fair and efficient adjudication” in
certain immigration cases. Matter of A-C-A-A-, 28 I&N Dec. 351, 351 (A.G.
2021). That decision can be read to preclude termination in some situations
where adjudicators previously have terminated cases—such as where
a noncitizen has obtained lawful permanent residence after being placed in
removal proceedings; where the pendency of removal proceedings causes
adverse immigration consequences for a respondent who must travel abroad
to obtain a visa; or where, as here, termination is necessary for the respondent
5 In dicta in an unpublished decision, a panel of the Sixth Circuit signaled agreement with
S-O-G- & F-D-B-. See Arangure v. Garland, No. 19-4025, 2022 WL 539224, at *3 & n.3
(6th Cir. Feb. 23, 2022).
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to be eligible to seek immigration relief before USCIS. Pending the outcome
of the rulemaking process, immigration judges and the Board should be
permitted to consider and, where appropriate, grant termination in these types
of limited circumstances.
Accordingly, I overrule S-O-G- & F-D-B-, 27 I&N Dec. 462, vacate the
Board’s March 17, 2022, decision in this matter, and remand to the Board for
further proceedings consistent with this opinion.