Attorney General Garland overturns prior Attorney General Sessions’ decision that had eliminated judge’s authority to terminate removal cases

Attorney General Merrick Garland on November 21, 2022 issued a decision under Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022 that overturns prior Attorney General Jeff Sessions’ 2018 decision in Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) that had decided that an Immigration judge had no authority to terminate or dismiss a removal proceeding also known as a deportation proceedings except where the government was in agreement of termination  under very limited circumstances such as where the government was satisfied that:

1) The noncitizen is a national of the United States;

(2) The noncitizen is not deportable or inadmissible under immigration laws;

(3) The noncitizen is deceased;

(4) The noncitizen is not in the United States;

(5) The notice was issued for the noncitizen’s failure to file a timely petition as required by section 216(c) of the Act, but his or her failure to file a timely petition was excused in accordance with section 216(d)(2)(B) of the Act;

(6) The notice to appear was improvidently issued, or

(7) Circumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government.

In many jurisdictions, this eliminated the potential of options for relief from removal that required the noncitizen to have removal proceedings terminated before applying for such relief which were options for relief in effect before Attorney General Sessions’ decisions. We have discussed removal proceedings here.

Attorney General Garland’s decision now clarified and returned to the immigration judge the authority to terminate cases especially in circumstances where a noncitizen has received lawful permanent resident status after being placed in removal proceedings;  where the pendency of the removal proceedings can still cause an adverse immigration consequence on the noncitizen who must travel abroad to obtain an immigrant visa to obtain a green card; and where termination nis necessary to be eligible for immigration relief before the United States Citizenship and Immigration Service. We have discussed options for a noncitizen in removal proceedings to seek a green card here. We also discussed the process of obtaining a green card through the immigrant visa process here.

After the Sessions’ decisions and prior to Attorney General Garland’s decision, most often the noncitizen would require the approval of a government attorney to termination to allow for an immigration judge to terminate a removal proceeding. With this new decision, the authority to terminate without government permission now is returned to an Immigration Judge. However, it should be noted, that many Immigration Judges may still seek the position of a government attorney before agreeing to terminate a case where some judges may still be convinced by a government attorney to not terminate especially if there is doubt whether the noncitizen may qualify for another immigration benefit or where the noncitizen has a significant negative criminal or immigration history that would cause the judge to believe that the noncitizen deserves little to no discretion.