Fourth Circuit Abrogates Trump-Era Attorney General Decision Curtailing Immigration Judge Authority to Terminate Removal Proceedings
In Chavez Gonzalez v. Garland, 16 F.4th 131 (4th Cir. Oct. 20, 2021), the U.S. Court of Appeals for the Fourth Circuit abrogated a 2018 decision issued by then-Attorney General Jeff Sessions that had restricted immigration judges’ authority to terminate removal proceedings. In the 2018 decision, Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), then-Attorney General Jeff Sessions held that immigration judges, or IJs, “have no inherent authority to terminate or dismiss removal proceedings” even if a case presents compelling circumstances, and may only do so when a regulation expressly authorizes it or if the Department of Homeland Security, or DHS, cannot sustain the charges of removability. Id. at 463, The S-O-G- & F-D-B- decision was one of multiple decisions issued by Sessions curtailing IJs’ authority to manage their dockets that harmed noncitizens such as those with Deferred Action for Childhood Arrivals, or DACA, those pursuing immigration relief outside of the immigration court, and those waiting for a visa to become available.
Factual and Procedural Background in Chavez Gonzalez
DHS placed Mr. Chavez Gonzalez in removal proceedings and terminated his DACA grant. DHS terminated Mr. Chavez Gonzalez’s DACA without notice pursuant to a Trump administration policy despite his continued DACA eligibility. That policy was later enjoined as unlawful by a federal court in Inland Empire-Immigrant Youth Collective v. Nielsen, No. 17-cv-2048, 2018 WL 1061408 (C.D. Cal. Feb. 26, 2018).1 While Mr. Chavez Gonzalez’s DACA was restored pursuant to the Inland Empire injunction, his removal proceedings went forward. He made various requests to the IJ to avoid a removal order, including asking for termination or administrative closure based on his DACA, and asking for a continuance to await U.S. Citizenship and Immigration Services’, or USCIS, adjudication of his mother’s pending green card application, which, if granted, could make him eligible to apply for non-permanent resident cancellation of removal. The IJ denied each of these requests and ordered Mr. Chavez Gonzalez removed. Mr. Chavez Gonzalez appealed to the Board of Immigration Appeals, or BIA. While the appeal was pending, his mother’s green card application was granted, so Mr. Chavez Gonzalez filed a motion to remand to apply for cancellation of removal. The BIA denied the motion to remand and affirmed the IJ’s denial of the motions to terminate, administratively close, and continue. In denying the motion to terminate, the BIA reasoned that Mr. Chavez Gonzalez’s grant of DACA did not impact the charge in his Notice to Appear that he was present without being admitted or paroled and thus the IJ had no authority to terminate under S-O-G- & F-D-B-.
The Fourth Circuit’s Chavez Gonzalez Decision
The Fourth Circuit held that the plain language of the regulations confers on IJs and the BIA the inherent authority to terminate removal proceedings, abrogating Matter of S-O-G- & F-D-B-. In reaching this conclusion, the Fourth Circuit focused on 8 CFR § 1003.10(b) and 8 CFR § 1003.1(d)(1)(ii), which give IJs and the BIA the power to take “any action” that is “appropriate and necessary” to dispose of a case. The Fourth Circuit had relied on the same regulatory language in Zuniga Romero v. Barr, 937 F.3d 282 (4th Cir. 2019), where the court concluded that IJs and the BIA possess the general authority to administratively close cases, contrary to then-Attorney General Sessions’ decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). In Chavez Gonzalez, the court also remarked, “[W]e are quite frankly puzzled that the Government currently stands in support of Attorney General Sessions’s decision in Matter of S-O-G-, particularly in light of the fact that Matter of S-O-G- relies heavily on Castro-Tum, which is no longer good law.” 16 F.4th at 142. The court further noted that the fact that Attorney General Merrick Garland had subsequently overruled Matter of Castro-Tum in a July 2021 decision “calls into question the Government’s position in this matter and Matter of S-O-G- that IJs and the BIA do not have the inherent authority to terminate proceedings.” 16 F.4th at 143. The Fourth Circuit also concluded that the BIA erred in denying administrative closure without addressing Mr. Chavez Gonzalez’s DACA status but affirmed the denial of the motions to remand and for a continuance.
Implications of the Chavez Gonzalez Decision for Immigration Court Practitioners
In light of the Chavez Gonzalez decision, IJs located within the Fourth Circuit now have authority to terminate removal proceedings of noncitizens when they deem it appropriate. For example, IJs may grant termination in cases of DACA recipients like Mr. Chavez Gonzalez, or where a noncitizen is pursuing relief with USCIS or waiting for a visa to become available. Outside of the Fourth Circuit, IJs are still bound by S-O-G- & F-D-B-, but, when it is in their client’s interests to do so, and in conjunction with other strategies, practitioners may seek termination arguing that S-O-G- & F-D-B- was wrongly decided to preserve the issue for appeal. On a broader level, advocates hope that Attorney General Garland will overrule S-O-G- & F-D-B-, as he has done with several other Trump-era attorney general decisions that undermine fairness to noncitizens.
Aside from termination, practitioners should consider other tools to avoid removal of noncitizen clients whose cases are not ready to proceed to an immigration court merits hearing, such as those noncitizens awaiting a USCIS adjudication, awaiting a visa priority date, or who, like Mr. Chavez Gonzalez, have been granted DACA. One such tool is administrative closure, which Attorney General Garland restored nationwide in a July 2021 decision. Indeed, the Chavez Gonzalez court noted that “colorable arguments can be made that administrative closure is appropriate and necessary” in the case of a DACA recipient. 16 F.4th at 144. Another tool, more readily available now than during the prior administration, is to ask Immigration and Customs Enforcement, or ICE, Office of the Principal Legal Advisor, or OPLA, to exercise prosecutorial discretion to file a joint motion to dismiss the removal proceedings. The OPLA website provides information on making prosecutorial discretion requests.
More broadly, the facts of the Chavez Gonzalez decision illustrate how harmful immigration policies from the Trump administration continue to negatively impact noncitizens. Mr. Chavez Gonzalez was unlawfully stripped of his DACA grant pursuant to a Trump-era policy and placed in removal proceedings. Even when his DACA grant was restored, his removal proceedings continued on, with ICE advocating for, and the IJ ordering, his removal, following decisions authored by Jeff Sessions restricting IJs’ authority to terminate and administratively close cases. While the Biden administration has taken steps to reverse some of these harmful policies, like the Castro-Tum decision, others remain in place. Indeed, in the recent proposed DACA regulations, USCIS proposes to codify the Trump-era policy enjoined as unlawful in Inland Empire of terminating DACA without notice based solely on ICE’s decision to initiate removal proceedings. CLINIC submitted a comment calling for USCIS to abandon this harmful practice. Similarly, CLINIC urges Attorney General Garland to restore IJs’ termination authority nationwide by overruling S-O-G- & F-D-B-.
1 CLINIC filed an amicus brief in support of the plaintiffs-appellees in the government’s appeal of the injunction to the Ninth Circuit, which remains pending.