U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Ibrahim, Marcia Binder OHS LIT.Nork Co. PrisonNOR
Law Office of Marcia Binder Ibrahim, LLC 3400 Concord Road
222 S. Broad St. York, PA 17402
Lansdale, PA 19446

Name: TOUKIR, MD ALL RABBY A 058-546-274

Date of this notice: 4/4/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Cole. Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Md All Rabby Toukir, A058 546 274 (BIA April 4, 2017)
lT.S. Department of Justice Decision of the Board of Immigration Appea]s
Executive Office for Immigration Review

Fa11s Church, Virginia 22041

File: A058 546 274- York, PA Date:

APR - \ 2017
In re: MD ALL RABBY TOUKIR

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Marcia Binder Ibrahim, Esquire

ON BEHALF OF DRS: Richard S. O'Brien

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(B)(i), I&N Act [8 U. S.C. 1227(a)(2)(B)(i)] -

Convicted of controlled substance violation

APPLICATION: Termination; Dismissal

This case was previously before this Board on February 24, 2015, when we dismissed the
respondent's appeal of an Immigration Judge's November 3, 2014, decision finding the
respondent to be removable as charged and, in the absence of any applications for relief from
removal, ordering the respondent removed. The respondent, a native and citizen of Bangladesh,
petitioned for review of the Board's decision with the United States Court of Appeals for the
Third Circuit ("Third Circuit"). On February 19, 2016, the Third Circuit issued an order granting
the respondents petition in part, denying it in part, and remanding this matter to the Board for
further proceedings. The Third Circuit remanded the record, in relevant part, to allow us to
consider the impact, if any, of the Supreme Court's intervening decision in Mellouli v. Lynch,
135 S.Ct. 1980 (2015), on the Third Circuit's precedent decision in Rojas v. Att'y Gen. of the
U.S., 728 F.3d 203 (3d Cir. 2013), upon which both the Immigration Judge and the Board relied
in finding the respondent to be removable under section 237(a)(2)(B)(i) of the Act, 8 U.S.C.
1227(a)(2)(B)(i).

Following the Third Circuit's remand, the Department of Homeland Security ("OHS") filed a
motion to dismiss without prejudice these proceedings pursuant to 8 C.F.R. 239.2(a)(7),
claiming that "continuing with the case is no longer in the government's interest." These
regulations allow a DHS officer either to (1) cancel a Notice to Appear or (2) move for its
dismissal once it is pending before the Immigration Judge or the Board on the ground that,
among other reasons, the Notice to Appear was improvidently issued or "(c)ircumstances 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." 8 C.F.R. 239.2(a)(7), (c). In response, the
respondent has indicated his opposition to the motion to dismiss, asserting that "[b]y filing its
Motion to Pismiss, DHS intends to delay the development of case law that will allow the Board
to forestall future appeals through the publication of controlling case law."

Cite as: Md All Rabby Toukir, A058 546 274 (BIA April 4, 2017)
A058 546 274

In this case, a valid regulatory reason existed for cancelling the Notice to Appear, i.e., it is no
longer in the best interest of the government to continue proceedings after the issuance of
Mellouli v. Lynch. See Matter ofG-N-C-, 22 I&N Dec. 281 (BIA 1998); 8 C.F.R 239.2(a)(7).
We find the respondent's assertion that the motion was filed by DHS solely to delay the
development of relevant case law and to forestall future appeals to be both unsupported and
speculative. Accordingly, we will grant the DHS's motion. While the respondent asks that any

Immigrant & Refugee Appellate Center, LLC | www.irac.net

dismissal be with prejudice so that the respondent may not be placed into removal proceedings in
the future based on the same underlying facts, we find it appropriate to dismiss without
prejudice, as requested by the DHS.

Accordingly, the following order will be entered.

ORDER: The DHS's motion is granted, and proceedings are dismissed without prejudice.

Cite as: Md All Rabby Toukir, A058 546 274 (BIA April 4, 2017)