Our ability to file a Motion to Dismiss is rooted in the provisions outlined in 8 CFR § 1239.2(c). This regulation empowers government counsel to request the dismissal of a case based on the criteria established in 8 CFR § 239.2(a). These criteria encompass situations where the respondent:
- Is a U.S. national.
- Is not subject to deportation or inadmissibility.
- Is deceased.
- Is not physically present in the United States.
- Failed to submit a petition in a timely manner, with the failure excused.
- The Notice to Appear (NTA) was issued inappropriately.
- Significant changes in the circumstances of the case have occurred.
It's essential to highlight that the latitude to file this motion is largely influenced by the concept of prosecutorial discretion (PD).
ICE may initiate the review process for dismissal without requiring the respondent's affirmative request under PD. This emphasizes the need for comprehensive preparation, especially if the respondent intends to pursue immigration relief through legal channels.
If the respondent chooses to proceed with the pursuit of relief before the court and opposes the motion to dismiss, it becomes crucial to have a robust defense strategy in place.