Cite as 27 I&N Dec. 557 (BIA 2019) Interim Decision #3955

557

Matter of Magdaleno ANDRADE JASO, Respondent

Matter of Carmina CARBAJAL AYALA, Respondent

Decided May 31, 2019

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeal

An Immigration Judge has the authority to dismiss removal proceedings pursuant to 

8 C.F.R. § 239.2(a)(7) (2018) upon a finding that it is an abuse of the asylum process to 

file a meritless asylum application with the U.S. Citizenship and Immigration Services for 

the sole purpose of seeking cancellation of removal in the Immigration Court.

FOR RESPONDENTS: Marcos Favela, Esquire, Phoenix, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Brent Landis, Senior 

Attorney

BEFORE: Board Panel: MALPHRUS, MULLANE and LIEBOWITZ, Board Members. 

MALPHRUS, Board Member:

In a decision dated October 24, 2017, an Immigration Judge granted a 

motion filed by the Department of Homeland Security (“DHS”) to dismiss 

the respondents’ removal proceedings without prejudice. The respondents 

have appealed from that decision. The appeal will be dismissed.

On August 1, 2015, the respondents, through counsel, filed applications

for asylum with the U.S. Citizenship and Immigration Services (“USCIS”). 

On the advice of counsel, the respondents did not appear at their asylum 

interview. As required by 8 C.F.R. §§ 208.14(c)(1) and 1208.14(c)(1)

(2018), the USCIS referred their applications to the Immigration Court for 

adjudication in removal proceedings. At the first master calendar hearing 

before the Immigration Judge on October 7, 2015, the respondents, through 

this same attorney, immediately withdrew their asylum applications and 

applied for cancellation of removal. 

On December 12, 2016, the DHS filed a motion to dismiss the notices to 

appear without prejudice. In support of the motion, the DHS argued that 

circumstances of the case had changed to such an extent that continuation of 

the proceedings was no longer in the best interest of the Government. The

DHS noted the questionable manner in which the respondents and their 

attorney changed the requested form of relief at their first opportunity in

Immigration Court after failing without explanation to appear at their asylum 
Cite as 27 I&N Dec. 557 (BIA 2019) Interim Decision #3955

558

interview before the USCIS. The Immigration Judge found that they filed

meritless asylum applications, “affirmatively elected” not to appear at their 

asylum interview, and “deliberately declined” to petition the USCIS to 

reschedule their interview. He further determined that this conduct by the 

respondents and counsel constituted an abuse of the asylum process. 

The DHS has broad discretion to initiate removal proceedings by 

issuing, serving, and filing a Notice to Appear (Form I-862), which vests 

jurisdiction over an alien’s removal proceedings with the Immigration Court. 

See 8 C.F.R. § 1003.14(a) (2018) (providing that removal proceedings 

“commence” when the DHS files a notice to appear with the Immigration 

Court); see also section 239(a) of the Immigration and Nationality Act, 

8 U.S.C. § 1229(a) (2012); Matter of Ordaz, 26 I&N Dec. 637, 641 (BIA 

2015) (noting that the DHS has the sole discretion to commence removal 

proceedings). 

The DHS may unilaterally cancel a notice to appear before jurisdiction 

vests with an Immigration Judge. See 8 C.F.R. §§ 239.2(a), 1239.2(a)

(2018). However, once jurisdiction vests, the DHS may move for dismissal 

only for certain specified reasons, including where the “[c]ircumstances 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.” 

8 C.F.R. §§ 239.2(a)(7), (c), 1239.2(c); see also Matter of S-O-G- & F-D-B-, 

27 I&N Dec. 462, 465–66 (A.G. 2018); Matter of W-B-C-, 24 I&N Dec. 118, 

122 (BIA 2007). 

The language of 8 C.F.R. §§ 239.2 and 1239.2 “marks a clear boundary 

between the time prior to commencement of proceedings, where a [DHS]

officer has decisive power to cancel proceedings, and the time following 

commencement, where the . . . officer merely has the privilege to move 

for dismissal of proceedings.” Matter of G-N-C-, 22 I&N Dec. 281, 284 

(BIA 1998). “By this distinction, the regulation presumably contemplates 

not just the automatic grant of a motion to [dismiss], but an informed 

adjudication by the Immigration Judge or this Board based on an evaluation 

of the factors underlying the [DHS’s] motion.” Id.

An Immigration Judge has the authority to grant a DHS motion to dismiss 

removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7) upon a finding that 

it is an abuse of the asylum process to file a meritless asylum application with 

the USCIS for the sole purpose of seeking cancellation of removal in the 

Immigration Court. See Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 

(BIA 2012) (stating that an Immigration Judge may terminate proceedings in 

“specific circumstances consistent with the law and applicable regulations”). 

The record supports the Immigration Judge’s finding that the respondents’ 

conduct constituted such an abuse. The asylum applications they submitted 

to the USCIS lacked merit, were filed for the sole purpose of securing a 
Cite as 27 I&N Dec. 557 (BIA 2019) Interim Decision #3955

559

hearing on their cancellation applications before an Immigration Judge, and 

were withdrawn after the DHS commenced removal proceedings. The 

respondents have not disputed the Immigration Judge’s findings in this 

regard on appeal, and they do not assert that they currently have a colorable 

asylum claim.

Instead, they argue that the DHS has not demonstrated any change in 

circumstances that occurred after their notices to appear were issued, noting 

that their failure to appear for the asylum interview occurred before the DHS

issued the notices to appear. However, the respondents’ withdrawal of their 

asylum applications at the first master calendar hearing constitutes a change 

in circumstances that occurred after the issuance of the notices to appear. 

Moreover, the series of actions by the respondents after applying for asylum

changed the circumstances in their case “to such an extent that continuation 

[of the proceedings was] no longer in the best interest of the government.” 

8 C.F.R. § 239.2(a)(7). Therefore, the DHS’s motion was based on a valid 

ground for dismissal under 8 C.F.R. §§ 239.2(a)(7) and (c). See also 8 C.F.R. 

§ 1239.2(c).

The respondents also argue that by dismissing their proceedings without 

adjudicating their applications for cancellation of removal, the Immigration 

Judge violated their right to due process. However, the desire to regularize 

their status through discretionary relief, such as cancellation of removal, 

does not entitle them to the commencement and continuation of removal 

proceedings. See Mendez-Garcia v. Lynch, 840 F.3d 655, 666 (9th Cir. 2016) 

(“No statute or regulation requires the government to take action on [the 

aliens’] applications within a set period, nor does cancellation of removal 

‘give rise to a “substantive interest protected by the Due Process Clause.”’”

(citations omitted)). 

Finally, the dismissal of proceedings in this case was without prejudice. 

8 C.F.R. § 1239.2(c). The respondents have not been ordered removed, and 

there is no indication that they are in imminent danger of removal. If the 

DHS places the respondents in proceedings by issuing new notices to appear,

they may, at that time, pursue any form of relief from removal for which they 

may be eligible, including cancellation of removal. 

The Immigration Judge properly granted the DHS’s motion to dismiss the 

proceedings without prejudice. Accordingly, the respondents’ appeal will be

dismissed.

ORDER: The appeal is dismissed.