Termination of Proceedings
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For example, on June 21, 2018, the U.S. Supreme Court, in an 8-1 decision, held that the stop-time provision of the cancellation of removal physical presence eligibility requirement is not triggered by service of a document styled as a notice to appear (NTA) if such document does not include the date and time of hearing. Pereira v. Sessions, ___ U.S. ___, No. 17-459 (June 21, 2018). This case is relevant to any deportation case, which involves a defective NTA, as the immigration judge may lack subject matter or personal jurisdiction over cases with an invalid NTA.
Generally speaking, a motion to terminate can provide significant strategic advantages, especially for immigrants with criminal convictions, and gives a rare opportunity to hold the government (DHS) to its burden of proof.
What Is a Motion to Terminate?
Every case in removal proceedings should begin with an immigration attorney’s assessment as to whether the case merits the filing of a motion to terminate.
Why File a Motion to Terminate?
Motions to terminate can be based on several different grounds, including an improperly served notice to appear (NTA); a misstatement of facts in the NTA or other incongruity between the facts and the charge; eligibility for an immigration benefit or naturalization; or a legally deficient charge from DHS.
Legally deficient charge: Immigrants with criminal arrests placed in removal proceedings are charged with one or more grounds of “deportability” or “inadmissibility.” These charges allege that the immigrant has committed a category of offense that makes him deportable under the Immigration & Nationality Act (INA). If the charge cannot be sustained because for instance, an immigration lawyer is able to establish the crime alleged does not qualify as a deportable offense, proceedings may be terminated.
Application for immigration benefit: In some instances, an immigration attorney can file a motion to terminate if you qualify for an immigration benefit or you are eligible for naturalization. For example, if you are married to a U.S. citizen and have a visa petition pending that would allow you to apply for adjustment of status, proceedings can be terminated once the visa petition is approved and you qualify for adjustment. The same procedure may apply to clients who are eligible for U-Visa Adjustment, Battered Spouse I-360 VAWA Adjustment, Special Immigrant Juvenile Status, the Deferred Action for Childhood Arrivals (DACA) program, etc.
When to file a motion to terminate?
A motion to terminate may be filed at any time during deportation proceedings. However, it is normally best to file a motion to terminate prior to pleading to the allegations in the NTA.
Deny, Deny, Deny!
An immigration attorney who files a motion to terminate will normally deny the government’s charges at an initial calendar hearing and inform the immigration judge that he or she plans to file a motion to terminate. The reason this timing of denial is critical is because at this stage is when the government (DHS) has the burden of proving its charge by the standard of “clear and convincing evidence,” a relatively high standard to achieve.
Why Our Office?
The Offices of Murray & Silva, P.A. have successfully litigated many motions to terminate. Some attorney’s may admit the charges on the NTA if their client has a strong benefit or relief application available to them. Our office will not admit charges which cannot be sustained under the law. This strategy results in faster resolutions to an otherwise very stressful process.
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