BULNES, 25 I&N Dec. 57 (BIA 2009)

Cite as 25 I&N Dec. 57 (BIA 2009) Interim Decision #3651
1 As a result of the transitional rules in section 309(c) of the IIRIRA,110 Stat. at 3009-625,
the law in effect prior to its enactment continues to govern the respondent’s deportation
Matter of Olivia BULNES-Nolasco, Respondent
File A074 374 363 – Hartford, Connecticut
Decided July 23, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien’s departure from the United States while under an outstanding order of deportation
or removal issued in absentia does not deprive the Immigration Judge of jurisdiction to
entertain a motion to reopen to rescind the order if the motion is premised upon lack of
FOR RESPONDENT: Shawn L. Rutchick, Esquire, New London, Connecticut
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated February 19, 2008, an Immigration Judge denied the
respondent’s motion to reconsider an order denying reopening of her
deportation proceedings, which had been conducted in absentia. The
respondent has appealed from that decision. The Department of Homeland
Security has not filed a brief on appeal. The record will be remanded to the
Immigration Judge.
The respondent is a native and citizen of Honduras who entered the
United States without inspection on July 28, 1996. In August 1996 she was
personally served with an Order to Show Cause and Notice of Hearing
(Form I-221) pursuant to the law in effect prior to the enactment of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Division C of
Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”).1
An Immigration Judge
ordered the respondent deported in absentia after she failed to appear for herCite as 25 I&N Dec. 57 (BIA 2009) Interim Decision #3651
2 The respondent asserts that she has twice entered the United States since her in absentia
hearing, in 2001 and again in 2002, and that she remains here today.
scheduled hearing before the Hartford Immigration Court in June 1998. The
respondent filed a motion to reopen with the Immigration Judge on
December 7, 2007, arguing that she did not receive proper notice of the
deportation hearing. The Immigration Judge denied the motion on January 17,
2008, finding that the in absentia deportation order was executed by the
respondent’s subsequent departure from and reentry to the United States.
Accordingly, the Immigration Judge found that there were no proceedings to
The respondent filed a timely motion for reconsideration, arguing, inter alia,
that she was ordered deported in absentia while she was in Honduras,
having returned to that country almost a year before her hearing, and that
she therefore did not depart the United Stated under an order of deportation.2
The Immigration Judge denied the respondent’s motion, citing 8 C.F.R.
§ 1003.23(b)(1) (2008).
Section 101(g) of the Immigration and Nationality Act, 8 U.S.C. § 1101(g)
(2006), provides that an alien ordered deported or removed who has left the
United States is considered to have been deported in pursuance of law. It has
long been held that an alien’s departure from the United States while under an
outstanding order of deportation has the effect of executing the order, thereby
bringing finality to the deportation proceedings and depriving the immigration
courts and this Board of jurisdiction to entertain motions with respect to the
underlying order. See Matter of Okoh, 20 I&N Dec. 864, 864-65 (BIA 1994);
Matter of Yih-Hsiung Wang, 17 I&N Dec. 565, 567 (BIA 1980); Matter of
Estrada, 17 I&N Dec. 187, 188 (BIA 1979), rev’d on other grounds,
Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981); Matter of Palma,
14 I&N Dec. 486, 487 (BIA 1973); Matter of G- y B-, 6 I&N Dec. 159, 159-60
(BIA 1954); see also 8 C.F.R. § 1241.7 (2009). This principle is reflected in
the regulations governing the adjudication of motions in immigration court,
which provide in relevant part that “[a] motion to reopen or to reconsider shall
not be made by or on behalf of a person who is the subject of . . .
deportation . . . proceedings subsequent to his or her departure from the
United States.” 8 C.F.R. § 1003.23(b)(1); see also 8 C.F.R. § 1003.2(d) (2009)
(governing motions filed before the Board).
Because the departure of an alien under an outstanding order of deportation
has the effect of depriving the Immigration Judge of jurisdiction over the prior
proceedings, such a departure normally precludes the Immigration Judge fromCite as 25 I&N Dec. 57 (BIA 2009) Interim Decision #3651
reopening the proceedings. See generally Navarro-Miranda v. Ashcroft, 330
F.3d 672, 676 (5th Cir. 2003). However, we are persuaded that the present
case may constitute an exception to this general rule because the respondent
claims a lack of notice of the proceedings in which she was ordered deported
in absentia.
The rule that an alien’s departure from the United States constitutes an act
of “self-deportation” within the meaning of section 101(g) of the Act, so as to
trigger the jurisdictional bar to reopening, presupposes the existence of an
outstanding “order of deportation.” We conclude, as has the United States
Court of Appeals for the Eleventh Circuit, that an in absentia deportation
order does not so qualify if it was issued in a proceeding of which the
alien did not properly receive notice. Contreras-Rodriguez v. United States
Attorney General, 462 F.3d 1314 (11th Cir. 2006). See generally Matter of
Armendarez, 24 I&N Dec. 646, 654 n.6 (BIA 2008) (reserving decision on this
Applicable regulations provide in relevant part that “[a]n order entered
in absentia in deportation proceedings may be rescinded only upon a motion
to reopen filed . . . [a]t any time if the alien demonstrates that he or she did not
receive notice.” 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2) (emphasis added). With
respect to an in absentia deportation order, the term “rescind” means “to annul
ab initio.” See Matter of M-S-, 22 I&N Dec. 349, 353 (BIA 1998) (citing
Black’s Law Dictionary 1306 (6th ed. 1990)). An in absentia deportation order
issued in proceedings of which the respondent had no notice is voidable from
its inception and becomes a legal nullity upon its rescission, with the result
that the respondent reverts to the same immigration status that he or she
possessed prior to entry of the order. See id. Furthermore, the regulatory
phrase permitting rescission “at any time” suggests that an alien ordered
deported in absentia possesses a robust right to challenge the removal order on
improper notice grounds. 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2).
An Immigration Judge has the authority to consider and decide whether
he has jurisdiction over a matter presented to him. In other words, an
Immigration Judge has jurisdiction to determine his jurisdiction. Before an
Immigration Judge may conclude that he lacks jurisdiction to reopen by virtue
of an alien’s departure while under an outstanding order of deportation, he
must first determine that an “order of deportation” existed at the time of
departure. If an alien establishes that his departure from the United States
occurred after the entry of an in absentia deportation order that is subject to
rescission, an Immigration Judge’s decision rescinding that order constitutes
a binding judgment that the order was void ab initio, thereby precluding it
from being used as the predicate for an act of “self-deportation” under section
101(g) of the Act. Applying the jurisdictional bar to reopening in a case
involving an inoperative in absentia deportation order would give that orderCite as 25 I&N Dec. 57 (BIA 2009) Interim Decision #3651
3 To the extent that 8 C.F.R. §§ 1003.23(b)(1) and (4)(iii)(A)(2) may be considered
incompatible with one another, we note that the latter regulation is both more specific in its
applicability to in absentia orders and more recent in time than the former regulation. As the
United States Supreme Court has recognized in the context of statutory interpretation,
“‘[T]he implications of a statute may be altered by the implications of a later statute’ . . .
particularly . . . where the scope of the earlier statute is broad but the subsequent statutes
more specifically address the topic at hand.” FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 143 (2000) (quoting United States v. Fausto, 484 U.S. 439, 453 (1988));
see also United States v. Estate of Romani, 523 U.S. 517, 530-31 (1998) (holding that
“a specific policy embodied in a later federal statute should control our construction of the
[earlier] statute, even though it ha[s] not been expressly amended”).
4 We note that an open factual question exists with regard to whether the respondent entered
and exited the United States after the June 26, 1998, in absentia deportation order. In her
motion to reopen, she stated that she was in Honduras from July 28, 1997, until June 17,
2001, and again from August 1, 2001, until December 2002. However, in her motion to
reconsider, she stated that she did not leave the United States while under an order of
deportation, that is, after June 26, 1998. The Board has limited fact-finding abilities on
appeal. See 8 C.F.R. § 1003.1(d)(3)(i) (2009); see also Matter of S-H-, 23 I&N Dec.
462 (BIA 2002). Therefore, on remand, the Immigration Judge should make factual findings
with regard to the dates the respondent entered and departed the United States.
greater force than it is entitled to by law and would, as a practical matter,
impose a limitation on motions to rescind that is not compatible with the
broad language of 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2).3
Thus, we hold that an
alien’s departure from the United States while under an outstanding order of
deportation or removal issued in absentia does not deprive the Immigration
Judge of jurisdiction to entertain a motion to reopen to rescind the order if the
motion is premised on lack of notice.
In light of the foregoing, we will remand the record to the Immigration
Judge to allow him to decide in the first instance the jurisdictional question
whether the respondent’s in absentia deportation order is subject to rescission
for lack of proper notice.4
8 C.F.R. § 1003.23(b)(4)(iii)(A)(2); see also Matter
of C-R-C-, 24 I&N Dec. 677 (BIA 2008); Matter of M-R-A-, 24 I&N Dec. 665
(BIA 2008). We decline to address the respondent’s remaining contentions
on appeal, which the respondent may raise with the Immigration Judge on
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new