What Happens After Removal Proceedings Are Dismissed?

When removal proceedings are dismissed, the immediate threat of deportation ends. However, it’s common to wonder what happens next and how it impacts your current immigration status.

The removal process begins after an immigrant’s legal status expires or if they commit a violation of U.S. laws that warrants deportation. For instance, a tourist visa holder who overstays or works without authorization. Immigration authorities can also deport foreign students who fail to maintain full-time enrollment.

Anyone facing a removal hearing should consult an immigration lawyer right away. They can provide legal advice on avoiding removal.

In this article, we’ll explain what happens after removal proceedings are dismissed and how to protect your rights.

What Is the Difference Between Removal Proceedings Being Dismissed or Terminated?

Learning about the difference between dismissal and termination in immigration court proceedings is crucial for those navigating this process. Both outcomes could end removal proceedings. However, the key difference is who initiates the proceedings and the grounds for initiating them.

Dismissal Proceedings

Dismissal proceedings occur when the government attorney or the Department of Homeland Security (DHS) asks the immigration judge to dismiss the Notice to Appear.

The Notice to Appear is the document containing the charges filed against the individual. It starts the removal proceedings and instructs the noncitizen (the “respondent”) to appear in immigration court.

If the immigration judge grants the motion to dismiss, the person is no longer under the deportation or removal process.

The dismissal proceeding begins when government attorneys or the DHS file a motion to dismiss the charges. However, there are only certain grounds for dismissal of notice to appear as defined by federal law. These grounds are:

• The respondent is a U.S. citizen;
• The respondent is not deportable or inadmissible under immigration laws;
• The respondent is deceased;
• The respondent is not in the United States;
• The U.S. Citizenship and Immigration Services (USCIS) issued the notice for the respondent‘s failure to file a timely petition as required by section 216(c) of the Act. But USCIS excused his or her failure to file a timely petition in accordance with section 216(d)(2)(B) of the Act;
• The notice to appear was issued carelessly; or
• The circumstances of the case have changed since the issuance of the notice to appear. The change should be to such an extent that continuation is no longer in the best interest of the government.

Government attorneys can only dismiss a case for the reasons mentioned above. If they attempt to dismiss a case for other reasons, the immigration court will automatically treat the request as a motion for termination.

Termination Proceedings

Meanwhile, termination proceedings occur when an immigration judge exercises their authority to end a case. Dismissal requires an initiative from a government attorney or immigration officer. Compared to dismissal, either party can start a termination proceeding. The immigration judge also has the authority to initiate it independently.

Mandatory Termination

Immigration judges must terminate cases when specific requirements are met, including when:

• No deportability charges can be sustained.
• The noncitizen is mentally unfit, and fair proceedings are not possible.
• The person has obtained U.S. citizenship since proceedings began.
• The person has obtained protected status, such as permanent residence, refugee, asylum, or certain nonimmigrant statuses like S, T, or U visas.
• The motion to terminate was jointly filed by both parties, or one party filed the motion without opposition from the other.

Discretionary Termination

Immigration judges may terminate a case in certain situations. This happens when a party files a motion, and at least one of the following requirements is present:

• An unaccompanied child has filed an asylum application with USCIS.
• The person is eligible for naturalization or other relief that USCIS would handle, and has filed the appropriate application.
• The person has Temporary Protected Status, deferred action, or Deferred Enforced Departure.
• USCIS has granted a provisional unlawful presence waiver.
• Similar circumstances make termination necessary for case resolution.

Important Limitations for Termination Proceedings

Immigration judges cannot terminate cases for purely humanitarian reasons. The DHS must expressly agree to such termination or join a motion to terminate. Immigration judges can also not terminate a case if a regulatory provision prohibits termination.

Effects of Dismissal of Removal Proceedings

The dismissal of removal proceedings has several legal consequences:

Arrest Warrants Are Cancelled

Any pending warrant of arrest is revoked in cases of cancellation of notice to appear or termination of proceedings under 8 CFR 1239.2(e). This is an immediate form of relief from potential detention based on the pending immigration charges.

The Threat of Deportation Goes Away, For Now

Dismissal of removal proceedings ends the immediate threat of being deported from the United States. It also ends other charges contained in the Notice to Appear.

However, it is important to note that under 8 CFR § 1239.2(c), the dismissal occurs “without prejudice” to the noncitizen or to the DHS. This means that the current removal proceedings end. However, the U.S. government can reinitiate removal proceedings later if new grounds arise or your circumstances change, such as:

• New violations of immigration law
• Changes in immigration enforcement priorities
• Discovery of previously unknown information
• Criminal convictions or other disqualifying events

You can expect more long-term protection if your removal proceeding is terminated. If removal is terminated due to a status change (like getting a green card) that protection typically lasts as long as the underlying status remains valid.

Termination of Pending Applications Before Immigration Court

The dismissal of removal proceedings also ends applications for cancellation of removal, asylum applications, or other forms of relief from removal. This also represents a significant change in the rights of those claiming the relief. You cannot reinstate these claims without reopening the removal proceedings.

The dismissal also removes the immigration court‘s jurisdiction from the case, allowing the parties to pursue other forms of relief before other tribunals or agencies.

Changes to Employment Authorization

The effect of dismissal on employment authorization varies significantly, depending on the your current immigration status. Federal regulations 8 CFR § 274a.12 establish distinct categories of employment authorization. Each category comes with different regulatory frameworks and termination conditions.

Asylum-Based Employment Authorization

When a person has work authorization based on a pending asylum case, dismissing the removal proceeding could create a gray area. Their work permit depends on having an active asylum application. Since the case is ending, this could invalidate their work authorization. This puts them in a position where the positive legal outcome of the removal could harm their ability to work in the United States.

Required Actions for Asylum-Based Authorization Holders:

Under USCIS guidance effective October 16, 2023, some individuals must file a new Form I-589 with USCIS. These are individuals who had pending asylum applications when the court dismissed their removal proceedings. They need to file this form to continue pursuing asylum relief.

This re-filing process requires:

• Current version of Form I-589
• Copy of the EOIR Order of Dismissal or Termination
• Proof of the previous Form I-589 filed with EOIR
• Any additional or updated information regarding the asylum claim
• Mail-only filing to the USCIS lockbox (online filing not available)

Independent Employment Authorization

If you have a work permit that is not related to an asylum case, then dismissal of your removal proceedings will typically not affect your eligibility to work. Your work authorization is issued through a separate immigration process.

Examples of independent work authorization include:

• Green card applications: If you are applying to become a lawful permanent resident (LPR) or a green card holder, you can get work authorization while your application is pending.
• Temporary Protected Status (TPS): If you come from certain countries with ongoing conflicts or have been struck by natural disasters, you may have been admitted with temporary protected status.
• Family or employer sponsorship: A family member or employer filed a petition for you.
• Other special categories: This covers various other situations where federal law allows work authorization.

The key detail here is that your work permit exists independently of your removal case. After the immigration court dismisses your removal proceeding, you can continue to pursue other immigration benefits. The dismissal of the removal proceeding only removes the threat of deportation. It does not take away the work authorization that you have through other means.

To learn more about your authority to work after dismissal of removal proceedings, contact an immigration attorney. They can answer questions that you have about the dismissal of removal proceedings. They can also give legal advice tailored to the circumstances surrounding your court case.

Individuals Without Current Employment Authorization

For individuals who lack employment authorization at the time of dismissal, the dismissal itself does not grant work authorization. However, you could still pursue other relief. You can file a motion to vacate the order of dismissal. You can also appeal the order to the Board of Immigration Appeals (BIA).

Seek Legal Advice from an Immigration Attorney

If you or someone you know is facing removal proceedings or has questions about the impact of its dismissal on their immigration status, contact an immigration attorney. An experienced immigration attorney can help evaluate your immigration case and explain your legal options. They can also guide you through the intricate legal process of protecting your lawful status or your right to stay in the United States.

It is safe to talk to an attorney, regardless of your immigration status. Immigration lawyers focus on helping noncitizens resolve issues with the U.S. government. Your conversations are protected by the attorney-client privilege, and they do not report you to immigration authorities.

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