An Immigration Judge does not have authority to terminate removal proceedings to give an arriving alien an opportunity to present an asylum claim to the Department of Homeland Security in the first instance.
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Matter of J-A-B- & I-J-V-A-, Respondents
Decided November 2, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An Immigration Judge does not have authority to terminate removal proceedings to give
an arriving alien an opportunity to present an asylum claim to the Department of Homeland
Security in the first instance.
FOR RESPONDENTS: Alexander A. Kannan, Esquire, Spring Valley, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kathryn E. Stuever, Senior
Attorney
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:
In a decision dated June 2, 2016, an Immigration Judge granted the
respondents’ motion to terminate their removal proceedings without
prejudice. The Department of Homeland Security (“DHS”) has appealed
from that decision. The appeal will be sustained, the proceedings will be
reinstated, and the record will be remanded to the Immigration Judge.1
The respondents are natives and citizens of Mexico who applied for
admission to the United States on September 17, 2015, at the San Ysidro,
California, port of entry. During the inspection process, the respondents
expressed a fear of being returned to Mexico and requested asylum. Rather
than placing the respondents in expedited removal proceedings pursuant to
section 235(b)(1)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C.
§ 1225(b)(1)(A)(ii) (2012), the DHS released them from custody and paroled
them into the United States on September 19, 2015.
The DHS served the respondents with notices to appear, charging them
with inadmissibility as aliens without valid entry documents under section
212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (2012). By
filing the notices to appear with the Immigration Court, the DHS initiated
1 Subsequent to filing a brief on appeal, the respondents’ attorney moved to withdraw as
counsel of record. No adequate basis has been shown to permit withdrawal of counsel at
this late stage of the appeal. Therefore, the motion is denied.
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removal proceedings under section 240 of the Act, 8 U.S.C. § 1229a (2012),
and vested jurisdiction with the Immigration Judge.
In a hearing before the Immigration Judge, the respondents filed a motion
requesting that their removal proceedings be terminated without prejudice.
They argued that because they were paroled into the United States without
first being placed in expedited removal proceedings, they should be allowed
to present their persecution claim to an asylum officer prior to filing an
asylum application in removal proceedings before the Immigration Judge.
The DHS opposed the respondents’ motion to terminate the proceedings.
The Immigration Judge granted the respondents’ motion, reasoning that
arriving aliens who have been paroled into the United States, rather than
placed in expedited removal proceedings, should be given an opportunity to
file an application for asylum with the DHS in the first instance. He found
that the respondents received “unequal treatment” because aliens who
unlawfully entered the United States or who remained in violation of the law
have two opportunities to have an asylum claim considered. 2 In the
Immigration Judge’s view, terminating proceedings to permit the
respondents to file an asylum application with the DHS would promote
fairness because a DHS asylum interview is a nonadversarial and less formal
process than removal proceedings. See 8 C.F.R. §§ 208.9(b) 1208.9(b)
(2017). He also noted that termination would preserve the Immigration
Court’s limited resources, given that if asylum were granted by the DHS,
there would be no need for the respondents to appear in Immigration Court.
We agree with the DHS that the Immigration Judge erred in terminating
these proceedings because there was no legal basis for doing so. It is well
settled that an Immigration Judge may only “terminate proceedings when
the DHS cannot sustain the charges [of removability] or in other specific
circumstances consistent with the law and applicable regulations.” Matter of
Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012). Neither the Act nor the
regulations dictate that arriving and paroled aliens should be given two
opportunities to have an asylum application considered—first, before a DHS
asylum officer and later, before an Immigration Judge.
The regulations provide that the DHS has initial jurisdiction over an
asylum application filed by an alien who is physically present in the
United States or seeking admission at a port of entry. 8 C.F.R. §§ 208.2(a),
1208.2(a) (2017). However, once the DHS commences removal proceedings
2 We note that the Immigration Judge’s underlying premise in this regard is inaccurate
because the DHS may commence removal proceedings against aliens who are in the
country illegally before they file an affirmative asylum application. Only unaccompanied
alien children have a statutory right to initial consideration of an asylum application by the
DHS, and it is undisputed that the respondents do not fall within this class. See section
208(b)(3)(C) of the Act, 8 U.S.C. § 1158(b)(3)(C) (2012).
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by filing a notice to appear with the Immigration Court, an Immigration
Judge has exclusive jurisdiction over any asylum application an alien files,
see 8 C.F.R. §§ 208.2(b), 1208.2(b), and it is the Immigration Judge’s
responsibility to adjudicate that application, see 8 C.F.R. § 1240.11(c)(3)
(2017).
In Matter of P-L-P-, 21 I&N Dec. 887 (BIA 1997), we addressed a similar
issue, finding that an Immigration Judge improperly terminated deportation
proceedings to allow an alien to pursue the asylum application he had
previously filed with the former Immigration and Naturalization Service
(“INS”). In this regard, we noted that “according to 8 C.F.R. § 208.2(b),
Immigration Judges have exclusive jurisdiction over asylum applications
filed by aliens” once a charging document has been served and filed with the
Immigration Court. Id. at 888. For the same reasons, once removal
proceedings commenced in this case, it was improper for the Immigration
Judge to terminate proceedings in order for the respondents to pursue asylum
before the DHS.
Moreover, the Immigration Judge’s decision to terminate proceedings
was inconsistent with his role in our adjudicative process. As we stated
in Matter of W-Y-U-, 27 I&N Dec. 17, 19 (BIA 2017), “The role of the
Immigration Courts and the Board is to adjudicate whether an alien is
removable and eligible for relief from removal in cases brought by the DHS.”
Therefore, although we recognize the Immigration Judge’s efforts to
conserve the Immigration Court’s limited resources, he had a duty to
adjudicate the respondents’ case once the removal proceedings were
initiated. Id.
The DHS’s decision to commence removal proceedings involves the
exercise of prosecutorial discretion, and neither the Immigration Judges nor
the Board may review a decision by the DHS to forgo expedited removal
proceedings or initiate removal proceedings in a particular case.3 See Matter
of E-R-M- & L-R-M-, 25 I&N Dec. 520, 523 (BIA 2011) (holding that “the
DHS has discretion to put aliens in section 240 removal proceedings even
though they may also be subject to expedited removal under section
235(b)(1)(A)(i) of the Act”); see also Matter of G-N-C-, 22 I&N Dec. 281,
284 (BIA 1998) (recognizing that “the decision to institute deportation
proceedings involves the exercise of prosecutorial discretion and is not
a decision which the Immigration Judge or the Board may review”).
Terminating removal proceedings to require the DHS to initiate expedited
removal proceedings, or to refrain from commencing removal proceedings
altogether, in order to give the respondents an opportunity to file an asylum
3 Likewise, the DHS’s determination that an alien falls within its enforcement priorities
is a matter within its exercise of prosecutorial discretion, and an Immigration Judge may
not review, revisit, or reconsider that decision. Matter of W-Y-U-, 27 I&N Dec. at 19.
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application with the DHS “impinges upon the [DHS’s] exclusive authority to
control the prosecution of [removable] aliens.” Matter of Roussis, 18 I&N
Dec. 256, 258 (BIA 1982) (holding that an Immigration Judge’s sua sponte
decision to remand an alien’s application for adjustment of status to the INS
impinged on the INS’s exclusive authority to initiate and prosecute
proceedings to a conclusion).4
The respondents also claim that the DHS improperly bypassed the
credible fear interview process under section 235(b)(1)(A)(ii) of the Act
when it chose not to place them in expedited removal proceedings but,
instead, paroled them into the United States and commenced section 240
removal proceedings. This argument is foreclosed by Matter of E-R-M-
& L-R-M-, 25 I&N Dec. at 523−24, where we held that the DHS has
discretion to place an arriving alien in section 240 removal proceedings,
regardless of whether the alien expresses a fear of persecution. Therefore,
the DHS was well within its authority to serve the respondents with notices
to appear in Immigration Court, where they can pursue their asylum claim
before the Immigration Judge, in lieu of initiating expedited removal
proceedings.
We are also unpersuaded by the respondents’ assertion that they were
deprived of certain fundamental rights when the DHS initiated removal
proceedings, thereby circumventing the credible fear provisions of the
regulations. The respondents have no due process right to initial
consideration of their asylum claim by the DHS because they will receive a
full and fair hearing on their application by the Immigration Judge. See
Matter of G-D-, 22 I&N Dec. 1132, 1137 (BIA 1999) (holding that an alien’s
right to “a full and fair hearing on his asylum claim” was not compromised
where he had “availed himself of his statutory and regulatory rights, which
resulted in a full hearing” in removal proceedings).
Moreover, even if the DHS places an alien in expedited removal
proceedings and, following an interview, finds that the alien has a credible
fear, such a finding would not necessarily result in a grant of asylum. See
sections 235(b)(1)(A), (B) of the Act; 8 C.F.R. §§ 235.3(b)(4), 1235.3(b)(4)
(2017). Instead, the alien would be placed in section 240 removal
proceedings for an Immigration Judge to consider his or her claim to
4 We note that the DHS paroled the respondents into the United States under section
212(d)(5)(A) of the Act for the purpose of placing them in removal proceedings under
section 240 of the Act. In this respect, the Immigration Judge’s decision to terminate the
proceedings so the respondents could pursue an asylum application before the DHS also
impinges on the DHS’s parole authority. See Matter of Arrabally & Yerrabelly, 25 I&N
Dec. 771, 777 n.5 (BIA 2012) (“[P]arole authority is . . . exercised exclusively by the
DHS.”).
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asylum or withholding of removal de novo. 8 C.F.R. § 208.30(f) (2017).5
Consequently, there is no merit to the respondents’ assertion that by not
having a credible fear interview, they were deprived of an opportunity to
establish the reasons for their fear of returning to Mexico.
For the above reasons, we conclude that the Immigration Judge erred in
terminating the respondents’ removal proceedings to allow them to present
their asylum claim to the DHS in the first instance. An Immigration Judge
cannot require the DHS to exercise its prosecutorial discretion to initiate
expedited removal proceedings. And an Immigration Judge does not have
authority to terminate removal proceedings so that an alien can have an
asylum claim considered first by an asylum officer and, if it is not granted,
then by an Immigration Judge. Instead, once section 240 removal
proceedings are commenced, the Immigration Judge has a duty to adjudicate
the respondents’ case, regardless of how the DHS elected to prosecute it.
Accordingly, the DHS’s appeal will be sustained, the removal proceedings
will be reinstated, and the record will be remanded to the Immigration Judge.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the removal
proceedings are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.
5 While we recognize that there are procedural differences between presenting an asylum
claim to the DHS and filing an asylum application with an Immigration Judge in removal
proceedings, the respondents “have more rights available to them in proceedings under
section 240 than in expedited removal proceedings [before a DHS asylum officer], where
aliens may only raise persecution-related relief.” Matter of E-R-M- & L-R-M-, 25 I&N Dec.
at 521 n.1.