(a) Any officer authorized by § 239.1(a) to issue a notice to appear may cancel such notice prior to jurisdiction vesting with the immigration judge pursuant to § 3.14 of this chapter provided the officer is satisfied that:
(1) The respondent is a national of the United States;
(2) The respondent is not deportable or inadmissible under immigration laws;
(3) The respondent is deceased;
(4) The respondent is not in the United States;
(5) The notice was issued for the respondent's failure to file a timely petition as required by section 216(c) of the Act, but his or her failure to file a timely petition was excused in accordance with section 216(d)(2)(B) of the Act;
(6) The notice to appear was improvidently issued, or
(7) Circumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government.
(b) A notice to appear issued pursuant to section 235(b)(3) of the Act may be canceled under provisions in paragraphs (a)(2) and (a)(6) of this section only by the issuing officer, unless it is impracticable for the issuing officer to cancel the notice.
(c) Motion to dismiss. After commencement of proceedings pursuant to 8 CFR 1003.14, ICE counsel, or any officer enumerated in paragraph (a) of this section, may move for dismissal of the matter on the grounds set out under paragraph (a) of this section.
(d) Motion for remand. After commencement of the hearing, ICE counsel, or any officer enumerated in paragraph (a) of this section may move for remand of the matter to district jurisdiction on the ground that the foreign relations of the United States are involved and require further consideration.
(e) Warrant of arrest. When a notice to appear is canceled or proceedings are terminated under this section any outstanding warrant of arrest is canceled.
[62 FR 10366, Mar. 6, 1997, as amended at 68 FR 35276, June 13, 2003]
Notes of Decisions
Jose Napoleon Marquez-Almanzar v. Immigr. & Naturalization Serv., 418 F.3d 210 (2d Cir. 2005).
· cites it 3× “Marquez^-Alamanzar then asked that removal proceedings be terminated pursuant to former 8 C.F.R. § 239.2 (f) (2000), 3 stating that he had applied for naturalization and claiming that he could demonstrate prima facie eligibility for citizenship.”
Avetisyan, 25 I. & N. Dec. 688 (BIA 2012).
· cites it 2× “8 C.F.R. §§ 239.2 (a), 1239.2(a) (2011). Thereafter, the DHS may move to dismiss proceedings on any ground that may have warranted cancelling the notice to appear.”
Jose Gonzalez-Caraveo v. Jefferson Sessions, 882 F.3d 885 (9th Cir. 2018).
“at 691 (citing 8 C.F.R. §§ 239.2 (c), 1239.2(c)). Once a notice to appear is filed with the Immigration Court, however, jurisdiction over the individual’s immigration case vests with the IJ, and it is the IJ’s duty to adjudicate the case.”
G-n-c, 22 I. & N. Dec. 281 (BIA 1998).
· cites it 5× “The Immigration Judge is not required to terminate proceedings upon the Service’s invocation of prosecutorial discretion but rather must adjudi- cate the motion on the merits according to the regulations at 8 C.F.R. § 239.2 (1998). (3) The Immigration Judge and the Board of…”
Lyttle v. United States, 867 F. Supp. 2d 1256 (M.D. Ga. 2012).
· cites it 5× “” 8 C.F.R. § 239.2 (a)(1). Jurisdiction vests with the immigration judge upon delivering of the charging document to the Immigration Court.”
Saqr v. Holder, 580 F.3d 414 (6th Cir. 2009).
· cites it 3× “Moreover, pursuant to 8 C.F.R. § 239.2 , any officer authorized to issue a notice to appear “may cancel such notice prior to jurisdiction vesting with the *422 immigration judge” under certain specified circumstances.”
Wilfredo A. Zalaya v. Sec'y, Florida Dep't of Corr., 798 F.3d 1360 (11th Cir. 2015).
· cites it 2× “” The judge subsequently issued an order on February 15, 2012 terminating Zelaya’s deportation proceedings without prejudice, “per DHS motion pursuant to 8 C.F.R. § 239.2 (a)(7).” 1 We are not aware of any further developments in Zelaya’s immigration case.”
Javier Chavez Gonzalez v. Merrick Garland, 16 F.4th 131 (4th Cir. 2021).
· cites it 2× “, dismissing proceedings where the Notice to Appear was improvidently issued or 11 circumstances changed such that a continuation was no longer in the best interest of the Government, see 8 C.F.R. §§ 239.2 (a)(6)–(7), 1239.2(c); terminating removal proceedings to permit the…”
Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19 (D.C. Cir. 2018).
“See 8 C.F.R. §§ 239.2 (c)-(d), 1239.2(c)-(d), 1240.”
Miguel Lopez Luvian v. Merrick Garland, 40 F.4th 996 (9th Cir. 2022).
“During Lopez’s removal proceedings before an IJ, DHS twice moved pursuant to 8 C.F.R. § 239.2 (a)(6) to dismiss Lopez’s NTA as improvidently issued.”
— 8 C.F.R. § 239.2(a) — 3 cases
— 8 C.F.R. § 239.2(b) — 1 case
— 8 C.F.R. § 239.2(c) — 2 cases
— 8 C.F.R. § 239.2(d) — 1 case
— 8 C.F.R. § 239.2(e) — 1 case
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