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ents. In Matter of G-N-C-, 22 I&N Dec. Further, although the current prac- and seek more lasting forms of relief for dismissal of the case often means that a
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281 (BIA 1998), the BIA held that once tice is to outright dismiss the case, ICE their clients. noncitizen will lose work authorization
the NTA is filed an Immigration Judge attorneys may agree to administrative Despite its beneficial aspect, the with little warning. Dismissal of a case
must not simply cancel a charging docu- closure when the noncitizen does not various methods for exercising prosecu- may also leave individuals with essen-
ment upon USCIS’ invocation of pros- oppose and the specific facts of the case torial discretion can place noncitizens tially no authorization to remain in the
ecutorial discretion, but should adjudi- warrant administrative closure over in uncertain situations and raise ethical US, giving them little choice but to work
cate the motion to dismiss on the merits, other means of clearing the case from dilemmas for their immigration law- without authorization, not pay taxes, and
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considering arguments from both sides. the docket. In some instances, though, yers. The attorney must be competent, potentially violate the law in other ways.
Certain noncitizens have a right to be OPLA can unilaterally seek adminis- diligent and must communicate with Immigration attorneys must carefully an-
placed in removal proceedings. One trative closure regardless of the wishes the client to ensure that the client is not alyze these issues and advocate for their
whose affirmative asylum application of the noncitizen. As explained above, worse off than in pending removal pro- clients when a dismissal or administrative
is not granted must be referred for re- the case can also be removed from the ceedings. Most important, the attorney closure may do more harm than good.
moval proceedings pursuant to 8 CFR active calendar. Immigration attor- must obtain the client’s informed con-
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§ 208.14(c)(1). Similarly, under 8 CFR neys should inform their clients of the sent before responding to any discre- This is an update of Ethical Considerations
§ 216.4(d)(2) and 8 CFR § 216.5(f), the impact that such actions would have tionary initiative by the ICE prosecutor When ICE Moves to Dismiss Removal Pro-
denial of a joint I-751 or waiver I-751 on their case, and vigorously oppose if or reaching an agreement with the gov- ceedings Under the Doyle Prosecutorial Memo,
petition requires the issuance of an the clients’ interests would be harmed. ernment. The pros and cons of seeking published on May 9, 2022, available at http://
NTA. A dismissal of such an application It is also important to recognize that relief under prosecutorial discretion blog.cyrusmehta.com/2022/05/ethical-consider-
would clearly be in violation of not the administrative closure or removing the over seeking relief under the INA must ations-when-ice-moves-to-dismiss-removal-pro-
ceedings-under-the-doyle-prosecutorial-discre-
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applicable regulations. Still, the IJ can case from the active calendar is not a be carefully considered and discussed tion-memo.html
dismiss a proceeding where a meritless permanent termination of removal pro- with the client. Because OPLA does not
asylum application was filed with the ceedings, so attorneys must continue to include language in motions that would *Kaitlyn Box is a Senior Associate at Cyrus D.
USCIS for the sole purpose of seeking monitor administratively closed cases preserve a noncitizen’s ability to work, Mehta & Partners PLLC.
cancellation of removal in immigration _________________________________________________________________________________________________________
court. See Matter of Andrade, 27 I&N Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta & Partners
Dec. 557 (BIA 2019). Thus, attorneys PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee; former
must be vigilant to contest a motion to chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate
dismiss if the facts of the case can be Division, First Department, New York; member of the ABA Commission on Immigration; board member of Volunteers for Legal Ser-
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distinguished from Matter of Andrade. vices and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American
For instance, even if the asylum appli- Immigration Council and former chair of the Committee on Immigration and Nationality Law of the New York City Bar Association.
cation may have been filed with the He is a frequent speaker and writer on various immigration-related issues, including on ethics, and is also an adjunct professor of law at
intention for seeking cancellation of re- Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein
moval, but the asylum application had Memorial Award for advancing the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstand-
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merit, this would not be a basis for an IJ ing efforts in providing pro bono representation in the immigration field. He has also received two AILA Presidential Commendations
in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who Legal – Corporate
dismiss the proceeding. Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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