Challenging ICE’s Case Dismissals and Expedited Removal

Since May 20, 2025, immigration attorneys have documented a disturbing trend: Immigration and Customs Enforcement (ICE) attorneys are increasingly filing motions to dismiss removal proceedings in Immigration Court, often orally and without prior notice, to funnel noncitizens into expedited removal processes. Freedom of Information Act (FOIA) data, recently published by the American Immigration Council (AIC) in an article, “ICE Attorneys Increasingly Request Case Dismissals at Immigration Court Hearings—and Immigration Judges Grant Them on the Spot”, October 7, 2025, reveals that ICE filed 6,210 motions to dismiss between May 20 and July 28, 2025, with 81% (approximately 5,030) being oral and 86% decided the same day, of which 80% were granted. AIC states that this represents a 633% spike in oral motions from during the reviewed time period In May, 2025.

These dismissals, often justified as “no longer in the government’s interest,” raise significant due process and Administrative Procedure Act (APA) concerns, particularly when granted over respondents’ objections and followed by immediate detention and expedited removal, stripping access to full judicial hearings. While the Department of Homeland Security’s (DHS) prosecutorial discretion is well-established, its procedural execution, bypassing written motion requirements and response periods, transforms courts into facilitators of swift deportations, undermining the independent adjudicative role of Immigration Judges (IJs).

Building on the AIC’s October 7, 2025, analysis, this article provides insight into how to challenge these dismissals and protect respondents’ rights under procedural requirements, IJ discretion, due process and APA implications, the credible fear process, the Immigration Court Practice Manual (ICPM), and practical recommendations, incorporating recent precedents like Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022), Matter of Roque-Izada, 29 I&N Dec. 106 (BIA 2025), Matter of H.N. Ferreira, 28 I&N Dec. 765 (BIA 2023), and EOIR Policy Memo DM 23-04.

 

II. Expedited Removal: Definition, Scope, and Current Application

A. Statutory Authority

Expedited removal, governed by INA § 235(b)(1) (8 U.S.C. § 1225(b)(1)), authorizes DHS officers to summarily remove certain noncitizens without a hearing before an IJ. It applies to:

• Arriving aliens at ports of entry inadmissible under INA § 212(a)(6)(C) (fraud or misrepresentation) or § 212(a)(7) (lack of valid documents);
• Other noncitizens present without admission or parole who cannot demonstrate continuous physical presence for two years, per DHS designations (8 C.F.R. § 235.3(b)(1)(ii)).

Exceptions include citizens of Western Hemisphere countries without full U.S. diplomatic relations arriving by aircraft (INA § 235(b)(1)(F))(Cuba); certain aliens related to asylum in the Commonwealth of the Northern Mariana Islands (INA § 235(b)(1)(G)); and lawful permanent residents, refugees (INA § 207), or asylees (INA § 208), who may receive limited review (INA § 235(b)(1)(C)).

 

B. DHS’s Expanded Use

Historically limited to recent border arrivals, expedited removal was expanded in 2019 to include undocumented individuals anywhere in the U.S. with less than two years’ proven presence. A 2025 amendment (Pub. L. 119-1) added state enforcement provisions (INA § 235(b)(3)). Paroled aliens post-April 1, 1997, may face expedited removal upon parole termination.

DHS increasingly uses dismissals to shift cases from standard INA § 240 proceedings to expedited removal, targeting:

• Undocumented entrants or visa overstays without two years’ presence;
• Aggravated felons under INA § 238(b);
• Individuals with pending asylum or withholding applications;
• Non-detained respondents appearing voluntarily, often leading to courthouse arrests.

This tactic exploits expedited removal’s limited protections, such as no automatic right to counsel or evidence presentation, unless a credible fear claim is raised (INA § 235(b)(1)(B)).

 

C. Procedural Pathway and Targeted Cases

When DHS moves to dismiss and the IJ grants it, DHS may re-arrest respondents at the courthouse for expedited removal, bypassing further judicial review. This practice disproportionately affects respondents with pending relief (e.g., asylum, adjustment of status), significant equities, or long-term residence, stripping them of judicial process and raising fairness concerns, particularly in light of recent trends in immigration court practices.

D. Parole and the effect of Executive Order 14165

On January 20, 2025, President Trump issued Executive Order 14165, “Securing Our Borders,” 90 FR 8647 (Jan. 30, 2025), which mandates DHS to terminate all categorical parole programs, including those facilitated through the CBP One app and the CHNV parole program. Section 7 of EO 14165 expressly calls for DHS to “terminate all categorical parole programs” and “cease using the CBP One application as a method of paroling or facilitating entry of otherwise inadmissible aliens,” thus nullifying their parole status.

Parole is a discretionary admission under INA § 212(d)(5), and parolees are considered lawfully present during parole. Upon termination or revocation of parole, individuals lose this lawful admission status. Under the expanded expedited removal regulations (8 C.F.R. § 235.3(b)(1)(ii)) and statutory amendments effective 2025, anyone without lawful admission or parole and unable to demonstrate continuous physical presence of at least two years in the United States becomes eligible for expedited removal regardless of location in the country.?

Consequently, former parolees who cannot prove this two-year presence, especially those recently paroled via CBP One whose parole was revoked, are now subject to immediate detention and expedited removal proceedings, often without a formal immigration court hearing.

Notably, recent federal court cases have at times placed temporary injunctions preventing expedited removal of individuals entering via airports on humanitarian parole, including some CBP One parolees, due to the risk of irreparable harms. However, these protections are not universal and do not yet apply broadly to all revoked parolees or those admitted outside limited humanitarian conduits. The legal landscape remains highly contested and evolving.

 

Practitioner Guidance

• Immediate Screening: Attorneys should assess the parole history and physical presence duration of clients previously admitted under CBP One or other humanitarian parole programs.
• Documenting Continuous Presence for Non-Parolees: Collect affidavits, leases, pay stubs, and other proof demonstrating physical presence of two years or longer.
• Prepare Credible Fear Claims: Advise clients to assert credible fear interviews upon expedited removal initiation, ensuring a potential pathway back to standard removal proceedings for asylum-eligible individuals (INA § 235(b)(1)(B)).
• Litigate Where Appropriate: In jurisdictions affected by injunctions, pursue litigation extending procedural safeguards and challenge expedited removal applicability where parole revocation fails to meet lawful procedural or constitutional standards.

III. DHS Motions to Dismiss and Procedural Requirements

A. Regulatory Framework

DHS’s authority to move for dismissal is outlined in 8 C.F.R. § 1239.2(c), allowing dismissal if:

• The Notice to Appear (NTA) was improvidently issued;
• The respondent is not amenable to proceedings;
• Continuation is no longer in the government’s interest.

“May move” indicates DHS’s discretion to request, not compel, dismissal; only the IJ can grant or deny. Once the NTA is filed, jurisdiction vests with the Immigration Court (8 C.F.R. § 1003.14(a)), and DHS cannot unilaterally withdraw it, per Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012).

General motion practice is governed by 8 C.F.R. § 1003.23 and ICPM Chapter 5.

B. Key Procedural Elements

Motions must be in writing, state grounds “with particularity,” include a cover page, and attach proof of service (ICPM § 5.2; 8 C.F.R. § 1003.23(a)). Oral motions require IJ permission (ICPM § 5.2(a)). Timeliness rules mandate filing at least 15 days before a hearing (30 days for subsequent hearings in non-detained cases) for a ruling at that hearing, unless good cause applies (ICPM § 5.2(b); 8 C.F.R. § 1003.23(b)). Oppositions have 10 days (13 if mailed) to respond, unless the IJ adjusts (ICPM § 3.1(d); 8 C.F.R. § 1003.23(c)).

 

Procedural Element                                      Reference                                                                               Details

 

Written Requirement                    ICPM § 5.2(a); 8 C.F.R. § 1003.23(a)                        Must include grounds, evidence, service proof; oral only

with IJ permission.

 

Timeliness                                     ICPM § 5.2(b); 8 C.F.R. § 1003.23(b)                       15 days pre-hearing (30 for non-detained subsequent); good

cause exceptions.

Response Rights                            ICPM § 3.1(d); 8 C.F.R. § 1003.23(c)                       10 days (13 mailed) to oppose; must address grounds

specifically.

Motions to Dismiss                         8 C.F.R. § 1239.2(c); ICPM § 5.10                           DHS-initiated for alternative action; IJ may grant if no

jurisdiction or other grounds.

 

AIC FOIA data shows 81% of motions were oral, with 86% decided same-day, often ignoring these rules and respondent objections, highlighting systemic procedural violations.

IV. The Immigration Judge’s Role and Residual Discretion

A. Independent Judgment and Statutory Duty

Under 8 C.F.R. § 1003.10(b), IJs “shall exercise their independent judgment and discretion” in deciding cases, ensuring rigorous scrutiny of DHS motions to dismiss. This duty positions IJs as “supposedly” independent adjudicators, not mere extensions of DHS’s prosecutorial discretion.

B. Limits and Updates from Attorney General and EOIR Policy

In Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022), the Attorney General overruled Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), restoring IJ and BIA authority to terminate or dismiss proceedings in limited circumstances, pending rulemaking. Coronado Acevedo distinguishes dismissal (under 8 C.F.R. § 1239.2(c)) from termination, allowing the latter for USCIS relief eligibility (e.g., adjustment of status), post-proceedings status grants, or to avoid adverse consequences. EOIR Policy Memo DM 23-04 (2023) reinforces this, permitting termination/dismissal when necessary for relief eligibility before USCIS and noting a September 8, 2023, Notice of Proposed Rulemaking (NPRM) to revise dismissal/termination regulations. Matter of H.N. Ferreira, 28 I&N Dec. 765 (BIA 2023), affirms this discretion but requires alignment with statutory and regulatory requirements.

C. Grounds for Denying DHS Motions

IJs may deny DHS motions when:

• The motion fails to satisfy 8 C.F.R. § 1239.2(c) (e.g., vague “government’s interest” without evidence, Matter of Roque-Izada, 29 I&N Dec.      106 (BIA 2025));
• It is procedurally defective (e.g., oral without good cause, Matter of H.N. Ferreira);
• It prejudices the respondent (e.g., forecloses relief that may only be available in §240 proceedings);
• It circumvents lawful orders or facilitates improper expedited removal;
• It  violates due process or EOIR procedures (e.g., ICPM response rights).

Roque-Izada emphasizes that dismissals/terminations must be evidence-based and legally grounded, rejecting speculative motions. Ferreira underscores regulatory compliance, reinforcing that IJs must not grant motions lacking legal basis. These precedents strengthen the argument that IJs should reject defective or prejudicial dismissals to uphold fairness.

V. Procedural Violations: Acceptance of Oral Motions and Ignored Response Rights

A. Acceptance of Oral Motions

Despite the ICPM’s mandate for written motions with particularity (ICPM § 5.2(a); 8 C.F.R. § 1003.23(a)), AIC’s FOIA data indicates 81% of DHS motions to dismiss were oral, with 86% decided same-day, often over respondent objections. ICPM § 5.2(a) permits oral motions only if good cause is shown and the opposing party has a chance to respond, while 8 C.F.R. § 1003.10(b) grants IJs broad authority to control proceedings, including waiving procedural rules. However, this discretion must align with due process principles. A “day of the hearing” motion to dismiss should also provide good-cause for not timely filing and providing Respondent an opportunity to respond.

The Board of Immigration Appeals (BIA) has upheld IJ discretion in limited contexts (e.g., Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007)), but granting oral motions without documented grounds risks arbitrariness, particularly when expedited removal follows. Granting a motion without any ruling on just cause for lack of timeliness creates another level of procedural violation. Matter of H.N. Ferreira reinforces that such decisions must comply with regulations, and Matter of Roque-Izadacautions against speculative grants lacking evidence. Federal courts have remanded cases where procedural shortcuts denied fairness (e.g., Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019)), supporting challenges to oral dismissals.

B. Ignoring Respondent’s Right to Respond

ICPM § 3.1(d) grants respondents 10 days (13 if mailed) to oppose motions, yet IJs frequently rule immediately on oral motions, violating this right. While 8 C.F.R. § 1003.23(c) allows rulings without response if unopposed, explicit objections require consideration. IJ discretion to adjust timelines (ICPM § 5.2) does not justify bypassing response periods when respondents object, as this contravenes INA § 240’s hearing requirements. Cases like Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009), highlight that denying response opportunities violates due process, providing grounds for appeal or litigation.

These violations, driven by efficiency or DHS pressure, undermine the judicial process and facilitate expedited removal, necessitating robust challenges by practitioners.

VI. Due Process and APA Considerations

A. Due Process

The Fifth Amendment guarantees noncitizens a full and fair hearing in removal proceedings (INA § 240(b)(4)). Immediate rulings on oral motions fail the Mathews v. Eldridge, 424 U.S. 319 (1976), test: the high private interest in avoiding deportation, significant risk of erroneous deprivation without response time, and minimal government burden for procedural delays. Key cases emphasize procedural fairness:

• Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014): IJs erred by denying hearings on asylum claims.
• Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009): Procedural shortcuts violated due process.

These precedents support arguments that oral, same-day dismissals, especially followed by expedited removal, deprive respondents of meaningful process.

B. Administrative Procedure Act (APA)

Immigration court adjudications are informal and exempt from APA § 554’s formal hearing requirements (5 U.S.C. § 554). However, broader DHS or EOIR policies and policy changes, may be challenged under APA § 706(2)(A) as “arbitrary, capricious, or not in accordance with law” if unpublished or procedurally defective (5 U.S.C. § 706). Failure to follow ICPM rules can constitute an APA violation if prejudicial, as seen in Singh v. Garland, 64 F.4th 556 (9th Cir. 2023), and Singh v. USCIS, 878 F.3d 441 (2d Cir. 2017). If the dismissal tactic stems from an unpublished policy, it may violate APA notice-and-comment requirements, offering grounds for district court challenges.

VII. Transitions to Expedited Removal and the Credible Fear Process

When DHS dismisses a case and re-arrests the respondent for expedited removal, individuals may seek protection through a Credible Fear Interview (CFI) conducted by a USCIS asylum officer under INA § 235(b)(1)(B). Respondents must show a “significant possibility” of establishing eligibility for asylum, withholding of removal, or CAT protection. If credible fear is found, the case is referred to EOIR for full INA § 240 proceedings; if denied, limited IJ review is available under 8 C.F.R. § 1003.42, which is summary and lacks full procedural safeguards.

This transition from § 240 proceedings to expedited removal raises significant fairness concerns, violating due process and the principle of finality in administrative adjudication. Practitioners should argue that such resets undermine the respondent’s right to a full hearing, especially when original relief claims (e.g., asylum, adjustment) are pending.

VIII. The Authority and Role of the Immigration Court Practice Manual

The ICPM is an EOIR-issued procedural guide, not a statute or formal regulation, but serves as binding internal policy under 8 C.F.R. §§ 1003.0(b), 1003.9(b). It explicitly states it creates no substantive rights (ICPM Preamble) but is binding unless the IJ directs otherwise (ICPM § 1.1(b)). Violations of ICPM rules (e.g., oral motions, ignored response periods) can support due process or APA claims if prejudicial, as recognized in Morton v. Ruiz, 415 U.S. 199, 235 (1974). Courts may defer to ICPM interpretations if reasonable under Chevron/Auer deference, but deviations provide grounds for appeal or litigation when they harm respondents.

IX. Litigation Strategies and Remedies

Practitioners facing oral dismissals followed by expedited removal have several avenues:

• Motion to Reopen/Reconsider: File under 8 C.F.R. § 1003.23(b), citing procedural and due process violations (e.g., lack of written motion, denied response time).
• Appeal to BIA: Raise errors under 8 C.F.R. § 1003.1(d), leveraging Roque-Izada and Ferreira to argue non-compliance with regulations.
• Petition for Review: File in circuit court within 30 days of a final order (INA § 242; 8 U.S.C. § 1252), arguing due process violations or arbitrary action; jurisdiction is limited for expedited removal (INA § 242(e) but available for legal/constitutional questions).
• APA Suit: In district court, challenge systemic policies as arbitrary under 5 U.S.C. § 706(2)(A), especially if unpublished tactics violate      notice-and-comment rules.
• Habeas Petition: Under 28 U.S.C. § 2241, allege unlawful detention due to procedural errors, citing cases like Thuraissigiam v. DHS, 917 F.3d 1097 (9th Cir. 2019), rev’d on other grounds, 140 S. Ct. 1959 (2020).
• Mandamus/Declaratory Relief: Under 5 U.S.C. §§ 702, 706, seek relief for EOIR’s failure to follow procedures.

Given the NPRM noted in DM 23-04, practitioners should monitor regulatory updates for potential changes to dismissal/termination rules.

X. Practice Recommendations

When confronted with a DHS motion to dismiss:

1. Object Immediately: Orally and in writing, cite ICPM § 5.2(a) and 8 C.F.R. § 1003.23(a) demanding a written motion; request the 10-day (13 if mailed) response period per ICPM § 3.1(d).
2. Demand Written Motion: Argue lack of good cause for oral motions and ineligibility for expedited removal (e.g., proven two-year presence,      pending relief). File a template opposition citing Roque-Izada for evidence-based requirements.
3. Seek Continuances: Move for time to respond, invoking good cause (8 C.F.R. §      1003.29).
4. Preserve Record: Document all objections orally and in writing for appeal; warn clients of potential ICE re-arrest and credible fear procedures.
5. Pursue Litigation: File motions to reopen, BIA appeals, or federal suits (habeas, APA, mandamus) to challenge procedural violations and detention. Seek emergency stay of removal pending BIA appeal.

XI. Conclusion

ICE’s strategy of seeking oral dismissals followed by expedited removal, as evidenced by the AIC’s FOIA data, marks a troubling shift that risks turning immigration courts into “cogs in the deportation machine.” While prosecutorial discretion is legitimate, its execution must comply with statutory, regulatory, and constitutional mandates. Matter of Coronado Acevedo, reinforced by Matter of H.N. Ferreira, Matter of Roque-Izada, and EOIR Policy Memo DM 23-04, restores IJ authority to dismiss or terminate but emphasizes evidence-based, regulation-compliant decisions.

IJs are not mere functionaries of DHS; they are independent adjudicators under 8 C.F.R. § 1003.10(b), tasked with ensuring fair proceedings. When this independence yields to convenience or executive pressure, the architecture of procedural justice is at risk.