Page 1 of 2. The Immigration Judge also erred in finding that the Notice to Appear was not. improvidently issued, pursua
The Immigration Judge also erred in finding that the Notice to Appear was not improvidently issued, pursuant to 8 C.F.R. § 239.2(a)(6). “Improvidently issued” is a term of art that does not require that the “improvidence” occur at the time the NTA was issued. Rather, “improvidently issued” is another way of stating that DHS does not seek to proceed with a case as a matter of discretion. See Matter of Vizcarra-Delgadillo, 13 I&N 51, 53 (BIA 1968) (“And where, following the formal start of deportation proceedings, additional facts or policy considerations arise which lead those responsible to conclude that this is not the sort of case in which such proceedings should have been started in the first place [former] 8 C.F.R. § 242.7 wisely provides the mechanics for termination on the ground that the proceeding was ‘improvidently begun.’”) 1 Similarly, the Immigration Judge erred in finding that the parties did not validly seek dismissal under 8 C.F.R. § 239.2(a)(7) (“Circumstances 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.”) “Government” in this regulation is referring to the Department of Homeland Security. See 8 C.F.R. § 239.2(a) (“Any officer authorized by § 239.1(a) to issue a notice to appear may cancel such notice ….).
Section 1239 of the regulations also gives DHS the
authority to move an Immigration Judge to dismiss proceedings on grounds set forth in section 239.2(a). See 8 CFR § 1239.2(c). Any assessment of “changed circumstances” is that of the Department of Homeland Security to make, and an Immigration Judge should defer to the judgment of DHS that circumstances have changed. In any event, the court erred in finding that 1
In Vizcarra-Delgadillo, the “improvidence” was not present at the time proceedings commenced. Rather, facts occurred after commencement of proceedings that made it appropriate for the then District Director of the Immigration and Naturalization Service to move to terminate proceedings; to wit, a pending writ of certiorari with the Supreme Court regarding the alien’s attempts to vacate his criminal conviction and an agreement of the alien to dismiss his writ if deportation proceedings were dismissed. See 13 I&N Dec. at 52. The Board found that based on these facts, it was proper to consider that proceedings had been improvidently issued. Id. at 53. By analogy, it was proper for DHS to seek to dismiss proceedings as improvidently issued due to the new facts set forth in the motion to reopen and dismiss.
circumstance had not changed because the alien remains removable – that is a separate basis to dismiss proceedings. See 8 C.F.R. §239.2(a)(2). It is illogical to conflate these two distinct bases to dismiss proceedings. More generally, the Immigration Judge abused his discretion in not acceding to the prosecutorial discretion of DHS, with the agreement of the respondent, to dismiss proceedings. “The role of the Immigration Court, like any other tribunal, is to resolve disputes.” U.S. Dept. of Justice, EOIR, Office of the Chief Immigration Judge, “Operating Policies and Procedures Memorandum 13-01: Continuances and Administrative Closure” (Mar. 7, 2013); see also Immigration Court Practice Manual, Chapter 1.3(b) (“As a general matter, Immigration Judges determine removability and adjudicate Applications for relief from removal.”). Here, there was no active dispute between the parties. Despite the absence of an active dispute between the parties, the Immigration Judge denied the joint motion to reopen and dismiss proceedings. This decision was inconsistent with the Board’s decision in Matter of Yewondwosen, where they found that “the parties have an important role to play in these administrative proceedings, and that their agreement on an issue or proper course of action should, in most instances be determinative.” 21 I&N Dec. 1025, 1026 (BIA 1997).
