Motion to dismiss

Motion to dismiss
/
A Motion to Dismiss is a legal request filed by one party in a legal proceeding, asking the court to dismiss the case based on specific grounds. In an immigration context, this motion is typically filed by the respondent or the defense to seek dismissal of removal proceedings.
Grounds for a Motion to Dismiss in Immigration Proceedings
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:
  1. Is a U.S. national.
  2. Is not subject to deportation or inadmissibility.
  3. Is deceased.
  4. Is not physically present in the United States.
  5. Failed to submit a petition in a timely manner, with the failure excused.
  6. The Notice to Appear (NTA) was issued inappropriately.
  7. 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.
Requirements for a Motion to Dismiss
1
Valid legal grounds
Motion must be based on valid legal grounds, such as lack of jurisdiction, improper service of notice, violation of constitutional rights, or failure to state a legally sufficient claim.
2
Supporting evidence or legal arguments
The motion should provide evidence or legal arguments demonstrating why the case should be dismissed based on the identified grounds. This can include supporting affidavits, legal precedents, statutes, or regulations.
3
Timely filing
The motion must be filed within the specified deadline set by the immigration court or administrative agency. Failure to meet the deadline may result in the motion being denied as untimely.
Advantages and Drawbacks of Dismissal
  • Benefit: If you, as the Respondent, currently face a removal order, opting for dismissal brings a significant advantage by nullifying the removal order. This strategic move ensures that, in the event of future apprehension, you will have the opportunity to seek relief anew, rather than facing immediate detention and removal.
  • Benefit: For those eligible for alternative forms of relief, a dismissal serves as a favorable outcome. It concludes the removal proceedings, affording you valuable time and focus to pursue alternative relief avenues.
  • Benefit: In cases where your chances of relief from removal are weak, agreeing to a dismissal enables you to sidestep future hearings and the likelihood of a removal order.
  • Downside: Consenting to dismissal means forfeiting your right to pursue asylum directly before the court. Consequently, this decision also bars you from applying for or qualifying for a work permit and other benefits associated with a pending asylum application.
  • Downside: It's essential to be aware that children, who generally do not accumulate unlawful presence, retain this protection even after turning 18 as long as they've submitted an asylum application. Yet, if they are 18 or older, receive dismissal under PD, and lack a pending claim at the Asylum Office, they may accrue unlawful presence. This, in turn, could limit access to various forms of relief in the future.
We are committed to delivering personalized and effective legal solutions. Whether you are pursuing immigration relief or facing a dismissal motion, our attorneys are ready to advocate for your best interests.