C ite as 27 I&N Dec. 557 ( BIA 2019 ) Interim Decision #39 55

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 h as 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 remova l in the Immigration Court

.

FOR RESPONDENT S : 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 respondent s ’ removal proceedings without prejudice

. The respondents have appealed from th at decision . The appeal will be dismissed. On August 1, 2015, the respondents, through counsel, f iled application s for asylum with the U.S. Citizenship and Immigration Services (“USCIS”).
On the advice of counsel, t he respondents did not appear at the ir asylum

interview . As required by 8 C.F.R. §§ 2 0 8 .14( c ) (1) and 12 0 8 .14( c ) (1) (2018)

, the USCIS r eferred 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 asyl um application s and appli ed 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 ha d changed to such an extent that continuation of the proceedings wa s no longer in the best interest of the G overnment . The

DHS not ed the questionable manner in which the respondents and their attorney ch ang ed the requested form of relief at the ir first opp ortunity in Immigration Court after failing without explanation to appear at their asylumC ite as 27 I&N Dec. 557 ( BIA 2019 ) Interim Decision #39 55

558 interview before the USCIS. The Immigration Judge f ou nd that the y fil ed meritless asylum applications, “affirmatively elected ” not to appear at their asylum intervie w

, 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

. Se e 8 C.F.R. § 1003.14(a) (2018) (providing tha t 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

vest s with an Immigration Judge. See 8 C.F.R. § § 239.2(a), 1239.2(a) (2018)

. However, o nce 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 D ec. 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 underly ing 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 meritles s asylum application with

the U SCIS 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 consisten t with the law and applicable regulations”)

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

conduct constituted such an abuse

. T he asylum applications they submitted

to the USCIS lacked merit, were filed for the sole purpose o f securing aC ite as 27 I&N Dec. 557 ( BIA 2019 ) Interim Decision #39 55

559 hearing on their cancellation applications before an Immigration Judge , and

were withdrawn after the DHS commenced removal proceedings

. The respondents have not disputed t he 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 the ir notices to appear were issued, noting

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

issued the notices to appear . However, the respondents’ withdrawal of their asylum application s 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 apply ing for asylum changed the circumstances in th eir case “ to such an extent that continuation
[ of the proceedings wa s ] no longer in the best interest of the g overnment

. ”

8 C.F.R. § 239.2(a)(7)

. Therefor e, 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,

do es not entitle them to the commence ment 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 remov al ‘give rise to a “substantive interest protected by the Due Process Clause.”’” (citation s omitted) )

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

. 8 C.F.R. § 1239.2(c). The respondents h a v e not be en ordered removed

, and

t he re is no indication that they are in imminent danger of removal. I f the

DHS places the respondents in proceedings by issu ing 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.

T he Immigration Judge properly grant ed the DHS’s motion to dismiss the proceedings without prejudice . Accordingly, the respondents’ appeal will be

dismissed

. 

### ORDER: The appeal is dismissed.