Dismissal Without Prejudice and Termination of Proceedings
Three orders can take a removal case off a judge's calendar, and they are not interchangeable. Who may ask for each, what has to be shown, and what the person is left holding afterward differ in every respect, and only two of the three are endings.
The rule in short
Dismissal is available only on a government motion resting on the grounds that permit cancellation of the charging document, and it is without prejudice to either side. Termination is ordered by the judge, is mandatory where one of seven listed conditions is met, and is discretionary in a further set of situations. Administrative closure ends nothing: it suspends the case temporarily and the matter can be recalendared on a party's motion at any time.
A removal case can leave a judge's calendar in three ways, and people frequently use the words interchangeably. They should not. Dismissal, termination and administrative closure differ in who may ask for them, what must be shown, and what the person is holding afterward.
Dismissal on the government's motion
Dismissal is a government remedy. After proceedings have commenced, government counsel or a listed officer may move for dismissal on the grounds that permit cancellation of the charging document, and the judge may enter an order of dismissal on that motion.
Those grounds are specific: that the person is a national of the United States; that the person is not deportable or inadmissible; that the person is deceased; that the person is not in the United States; that the document was issued for failure to file a timely petition where the failure was excused; that the document was improvidently issued; or that circumstances have changed to such an extent that continuation is no longer in the best interest of the government.
Dismissal on that basis is without prejudice to either the person or the government, which means a fresh charging document can follow. Any outstanding warrant of arrest in the matter is canceled at the same time.
A motion to dismiss brought on any other basis is not treated as a dismissal motion at all. The regulation deems it a motion to terminate and it is adjudicated under the termination rules.
Termination that the judge must order
Termination is different in character: it is an order the judge makes, and in seven situations the judge has no choice.
Termination is required where no charge of deportability, inadmissibility or excludability can be sustained; where fundamentally fair proceedings are impossible because the person is mentally incompetent and adequate safeguards are unavailable; where the person has obtained United States citizenship since the proceedings began; where the person has obtained permanent residence, refugee status, asylee status or one of the listed nonimmigrant classifications since the proceedings began and would not have been removable as charged had that status been held earlier; where termination is required by a specific regulatory provision; where it is otherwise required by law; and where the parties have filed a joint motion to terminate, or one party has moved and the other has indicated non-opposition, unless the judge articulates unusual, clearly identified and supported reasons for refusing.
The first of those conditions is the one most defenses are built toward. Where the only charge rests on a conviction that falls outside the federal category on its elements, defeating the charge produces termination rather than merely a better bargaining position, which is why the analysis in the categorical approach is run before removability is conceded.
| Dismissal | Termination | Administrative closure | |
|---|---|---|---|
| Who may seek it | The government only | Either party, or the judge on a listed condition | Either party |
| What must be shown | A listed cancellation ground | A mandatory or discretionary condition | The totality of the circumstances favors it |
| Does the case end | Yes, without prejudice | Yes | No; it is suspended |
| Can it come back | Only by a new charging document | Only by a new charging document | By a motion to recalendar |
| Effect on an arrest warrant | Canceled | Canceled | Unaffected |
A terminated case leaves the person exactly where they were before it started. Someone who held permanent residence keeps it. Someone who held no status keeps none, now with no order outstanding but also no path forward. Termination is the right outcome to pursue where there is something underneath it, and a thinner victory where the alternative was a form of relief that would have conferred status.
Termination the judge may order
A second set of situations permits termination in the exercise of discretion on a party's motion, with the judge considering the reason termination is sought and the basis for any opposition.
They include a case where an unaccompanied child has filed an asylum application with the benefits agency under the provision for such children, and a case where the person is prima facie eligible for naturalization, relief from removal or lawful status, the benefits agency would have jurisdiction over the associated application if the person were not in proceedings, and the person has filed it. No filing is required where the person is prima facie eligible for adjustment of status or naturalization. Where the basis is prima facie eligibility for naturalization, the judge may not grant the motion if the government opposes it.
The regulation also states plainly that a judge may not terminate a case so the person can pursue an asylum application before the benefits agency, except in the unaccompanied child situation.
In proceedings that are not removal, deportation or exclusion proceedings, a separate provision permits discretionary termination where it is necessary or appropriate to dispose of or otherwise resolve the case, but forbids termination for purely humanitarian reasons unless the government expressly consents, joins the motion, or indicates non-opposition.
A final limitation applies across all of this. Nothing in the discretionary provisions authorizes termination where another regulatory provision prohibits it, so a route that looks available on the face of the termination rule may be closed by a rule elsewhere.
Closure, which ends nothing
Administrative closure is the temporary suspension of a case. It takes the matter off the active calendar until it is recalendared, and it decides nothing about removability or relief.
The judge applies a totality of the circumstances test that includes the reason closure is sought, the basis of any opposition, any requirement that a case be closed before another agency can act, the likelihood of success on whatever is being pursued, the anticipated duration, responsibility for delay, the anticipated outcome of the case, and detention status. A joint or unopposed motion must be granted absent unusual, clearly identified and supported reasons. The regulation is explicit that a pending application elsewhere is not a precondition for closure.
Closure is the natural fit where a long wait on another agency would otherwise produce a string of continuance requests, a problem described in continuances, good cause and waiting on another agency. Choosing between a continuance, closure and a push for termination depends on what the person would hold at the end of each, which is a strategic judgment a termination of proceedings attorney makes with the whole case in view rather than hearing by hearing.
Two of the mandatory conditions deserve separate attention. Incompetency combined with the absence of adequate safeguards is a route explored in competency concerns and the safeguards a judge must apply. Obtaining a status since proceedings began often depends on an application decided elsewhere, which brings the case back to the jurisdictional split described in adjustment of status raised as a defense to removal.
Points to carry away
- Only the government may move for dismissal, and only on the grounds that allow cancellation of the charging document.
- A motion to dismiss brought on any other basis is treated as a motion to terminate.
- Termination is mandatory where no charge can be sustained, or where one of six other listed conditions is met.
- A joint or unopposed motion to terminate must be granted absent unusual, clearly identified and supported reasons.
- Administrative closure suspends a case rather than ending it, and either party may move to recalendar.
Questions readers ask
Does termination restore whatever status the person had before?
It ends the proceeding, which means whatever situation existed before continues. A permanent resident whose case is terminated remains a permanent resident. A person who was unlawfully present remains unlawfully present, with no order against them but no status either. Termination is therefore excellent news for someone with something to return to and a more limited victory for someone without. Any outstanding warrant of arrest issued in the same matter is canceled when the case ends.
Can the government file a new case after a dismissal?
Yes. Dismissal on the grounds that permit cancellation of the charging document is expressly without prejudice to either the person or the government, so a fresh charging document may be issued and filed later on the same or different facts. In practice a case dismissed because it was improvidently issued is unlikely to return in the same form, while one dismissed because circumstances changed can return if circumstances change back.
How is a closed case put back on the calendar?
Either party may move to recalendar at any time after closure, and the judge decides using the same totality of circumstances test that governed the closure. Relevant considerations include why recalendaring is sought, how much time has passed, whether the person filed the application that closure was granted for, and what happened to it. A joint or unopposed motion to recalendar must be granted absent unusual, clearly identified and supported reasons.
Sources
- 8 C.F.R. § 1239.2 — Cancellation of notice to appearAuthorizes dismissal on government motion and states that it is without prejudice.
- 8 C.F.R. § 239.2 — Cancellation of notice to appearLists the grounds on which a charging document may be canceled and dismissal sought.
- 8 C.F.R. § 1003.18 — Docket managementSets out administrative closure, recalendaring, and mandatory and discretionary termination.
- 8 C.F.R. § 1003.14 — Jurisdiction and commencement of proceedingsEstablishes when jurisdiction vests, which fixes when these orders become available.
- 8 C.F.R. § 1240.8 — Burdens of proof in removal proceedingsDetermines whether a charge can be sustained, the first mandatory termination condition.
- EOIR Policy Manual, Part II, Chapter 4 — Motions before the Immigration CourtDescribes how motions of this kind are filed, served and decided.
Metro Law Advisors is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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