Cite as 25 I&N Dec. 589 (BIA 2011) Interim Decision #3726
Matter of Francisco HERRERA DEL ORDEN, Respondent
Decided September 13, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) When an alien in removal proceedings seeks “review” of the Department of Homeland
Security’s (“DHS”) denial of a waiver under section 216(c)(4) of the Immigration and
Nationality Act, 8 U.S.C. § 1186a(c)(4) (2006), of the requirement to file a joint petition
to remove the conditional basis of lawful permanent resident status, he or she may
introduce, and the Immigration Judge should consider, any relevant evidence without
regard to whether it was previously submitted or considered in proceedings before the
(2) The scope of the review authority provided in 8 C.F.R. § 1216.5(f) (2011) is
coterminous with the Immigration Judge’s ordinary powers and duties in removal
FOR RESPONDENT: Adalicia C. Santaella, Esquire, San Juan, Puerto Rico
FOR THE DEPARTMENT OF HOMELAND SECURITY: Magdalena Ramos Romey,
Assistant Chief Counsel
BEFORE: Board Panel: COLE, PAULEY, and WENDTLAND, Board Members.
WENDTLAND, Board Member:
In a decision dated June 11, 2008, an Immigration Judge reviewed the
Department of Homeland Security’s (“DHS”) denial of the respondent’s
application under section 216(c)(4)(B) of the Immigration and Nationality Act,
8 U.S.C. § 1186a(c)(4)(B) (2006), for a discretionary waiver of the
requirement to file a joint Petition to Remove the Conditions on Residence
(Form I-751) pursuant to 8 C.F.R. § 1216.5(f) (2011). The Immigration Judge
confined her review to the evidence that the respondent had previously
presented to the DHS in support of the waiver request, before removal
proceedings had commenced. The Immigration Judge determined on the basis
of this evidence that the DHS had properly denied the respondent’s petition
and waiver request as abandoned. She issued an order granting the respondent
voluntary departure, with an alternative order of removal.
On appeal, the respondent argues that the Immigration Judge should have
admitted the new evidence that he presented in support of his request for
a section 216(c)(4) waiver. To the extent that this evidence was otherwiseCite as 25 I&N Dec. 589 (BIA 2011) Interim Decision #3726
1 The regulation states, in pertinent part, that “[n]o appeal shall lie from the decision of the
director [of the pertinent regional service center]; however, the alien may seek review
of such decision in removal proceedings.” 8 C.F.R. § 1216.5(f).
relevant and probative, we agree that the Immigration Judge should have
admitted and considered it without regard to whether it was previously
submitted or considered in the proceedings before the DHS. Accordingly, the
respondent’s appeal will be sustained, and the record will be remanded to the
Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent became a conditional lawful permanent resident through
marriage to a United States citizen. He subsequently filed a petition to remove
the conditional basis of his lawful permanent resident status with the U.S.
Citizenship and Immigration Services, an agency within the DHS. However,
because the marriage had already ended in divorce, the respondent was unable
to meet the requirements for a joint petition under section 216 of the Act.
Consequently, in conjunction with the petition, the respondent requested
a waiver of the general joint filing requirement under section 216(c)(4)(B)
of the Act, claiming that he had entered into the now-terminated marriage
in good faith.
The DHS sent the respondent a Notice of Action (Form I-797) requesting
additional evidence documenting (1) the bona fides of the marriage and (2) the
lawful dissolution of the marriage. To that point, the respondent had only
submitted a photocopy of the front side of his conditional lawful permanent
resident card. However, the respondent did not submit any additional evidence
in response to the request, and as a result, the DHS denied the petition and
waiver request as abandoned. These removal proceedings were subsequently
initiated with the issuance of a Notice to Appear (Form I-862) charging
that the respondent is removable under section 237(a)(1)(D)(i) of the Act,
8 U.S.C. § 1227(a)(1)(D)(i) (2006), based on the termination of his conditional
permanent resident status.
The respondent conceded that he is removable as charged and sought
to renew the section 216(c)(4)(B) waiver request, contending that it should
be adjudicated on a record to be created during the hearing. However, the
Immigration Judge concluded that 8 C.F.R. § 1216.5(f), the regulation
allowing an alien to seek “review” in removal proceedings of the DHS’s denial
of a section 216(c)(4) waiver request, limited her inquiry to “whether or not
the [DHS] acted correctly”—i.e., an appellate-style review for error.1
The respondent was seeking to present certain evidence that he had not
previously submitted during the proceedings before the DHS, includingCite as 25 I&N Dec. 589 (BIA 2011) Interim Decision #3726
a divorce certificate and testimony by the respondent’s former spouse. But the
Immigration Judge reasoned that if she received evidence that had not been
previously presented to the DHS, she would be “trespassing on the agency’s
original jurisdiction.” Thus, the Immigration Judge determined that the
DHS had appropriately denied the respondent’s section 216 petition and
accompanying waiver request on the basis of his failure to respond to the
request for additional evidence.
The issue in this case is whether 8 C.F.R. § 1216.5(f), which provides for
“review” in removal proceedings of an application under section 216(c)(4)
of the Act seeking a waiver of the general joint filing requirement for a petition
to remove the conditional basis of lawful permanent resident status, restricts
the Immigration Judge’s ability to consider evidence that was not previously
submitted or considered during the initial proceedings before the DHS.
Inasmuch as the governing regulation does not elaborate on the scope of the
“review” for which it provides, we begin by considering the general form and
structure of the procedures for adjudicating applications for relief in the
context of removal proceedings. In exercising the powers and duties delegated
by the Attorney General of the United States, Immigration Judges have broad
authority over the manner in which they conduct proceedings, not only in cases
where removability is at issue, but also in those where the alien seeks only
relief from removal. See generally Matter of K-A-, 23 I&N Dec. 661, 664
(BIA 2004). In either case, an Immigration Judge must exercise his or her
independent judgment and discretion and may take any action consistent with
the Act and regulations that is appropriate and necessary for the disposition
of such cases. 8 C.F.R. §§ 1003.10(b), 1240.1(a)(1)(iv) (2011). In particular,
an Immigration Judge conducting removal proceedings has the authority
to create and control the record of proceedings, receive and consider material
and relevant evidence, question the alien and any other witnesses, issue
subpoenas for the attendance of witnesses and the presentation of evidence,
and generally take any action consistent with applicable law and regulations
as may be appropriate. See section 240(b)(1) of the Act, 8 U.S.C.
§ 1229a(b)(1) (2006); 8 C.F.R. §§ 1003.10(b), 1003.36, 1240.1(a)(1)(iv), (c)
(2011); cf. 8 C.F.R. § 1246.4 (2011) (stating the authority of Immigration
Judges in proceedings to rescind adjustment of status).
The substantive forms of relief that may be sought are provided by statute,
but the Immigration Judge’s specific authority to adjudicate the various kinds
of applications for relief is provided through implementing regulations.Cite as 25 I&N Dec. 589 (BIA 2011) Interim Decision #3726
See, e.g., 8 C.F.R. § 1240.1(a)(1)(ii). It is not uncommon, on the one hand, for
an alien to apply for relief from removal for the first time following the
commencement of proceedings. For example, an application for cancellation
of removal under section 240A of the Act, 8 U.S.C. § 1229b (2006 & Supp. III
2009), can only be made to an Immigration Judge after the initiation
of proceedings. See 8 C.F.R. § 1240.20(b) (2011). But many other aliens
in removal proceedings seek relief by renewing applications for immigration
benefits that they had initially submitted outside the context of such
With respect to some of these immigration benefits initially sought prior
to the commencement of removal proceedings, the regulations provide for the
initiation of proceedings upon the application’s denial, as is the case here.
8 C.F.R. §§ 216.5(f), 1216.5(f) (2011); Marriage Fraud Amendments
Regulations, 53 Fed. Reg. 30,011, 30,014 (Aug. 10, 1988) (Supplementary
Information) (“The only forum in which an alien may seek review of the
Service’s decision to terminate his or her status is during a hearing before
an immigration judge. For this reason, the regulations provide that the district
director shall issue an Order to Show Cause (which initiates the deportation
proceeding) whenever an alien’s status is terminated.”); see also 8 C.F.R.
§§ 216.4(d)(2), 1216.4(d)(2) (2011) (similarly addressing the denial of a joint
petition to remove the conditional basis of lawful permanent resident status
for an alien spouse); cf. 8 C.F.R. §§ 208.14(c)(1), 1208.14(c)(1) (providing
that the DHS shall “refer the application to an immigration judge” and
initiate removal proceedings when the asylum officer declines to grant
an affirmatively filed application for asylum and related relief); 240.70(d),
1240.70(d) (providing for referral of certain applications for suspension
of deportation and special rule cancellation of removal by an asylum officer
to the Immigration Court); 245.13(m)(1)(i), 1245.13(m)(1)(i) (providing for
the initiation of removal proceedings following the denial of adjustment
of status of certain nationals of Nicaragua and Cuba); 245.15(r)(2)(i),
1245.15(r)(2)(i) (2011) (providing for the initiation of removal proceedings
following the denial of adjustment of status of certain Haitian nationals).
In these cases, the regulations generally indicate that there is no direct appeal
from the denial (or simply omit any mention of authorization of a direct
appeal) but expressly preserve the alien’s prerogative to “renew,” “seek review
of,” or obtain an “adjudication” of the application in removal proceedings.
Further, there are some discrete procedures for adjustment of status where
the regulations, although not expressly providing for the initiation of removal
proceedings, state that there is no direct appeal from the application’s denial
except that the alien may “renew” the adjustment application in removal
proceedings (subject to the restriction on arriving aliens adjusting status
in proceedings). See 8 C.F.R. §§ 245.2(a)(5)(ii), (c), 1245.2(a)(5)(ii), (c),
245.20(k), 1245.20(k) (2011). In addition, an applicant for TemporaryCite as 25 I&N Dec. 589 (BIA 2011) Interim Decision #3726
Protected Status may have an opportunity to both appeal to the Administrative
Appeals Unit and renew the application in removal proceedings. See 8 C.F.R.
§§ 244.10, 1244.10 (2011). In contrast, the regulations describe comparatively
few discrete immigration benefits for which the renewal or adjudication of the
application in removal proceedings is expressly forbidden. See 8 C.F.R.
§§ 245.11(h)(i), 1245.11(h)(i) (adjustment of aliens in S nonimmigrant
classification); 245.21(c), 1245.21(c) (2011) (adjustment of status of certain
nationals of Vietnam, Cambodia, and Laos).
The general rule, therefore, is that an alien may renew an application for
an immigration benefit before an Immigration Judge in removal proceedings.
Further, nothing in these regulations indicates that the Immigration Judge’s
ordinary power and duty to receive evidence into the record of proceeding and
adjudicate an application for relief, as described above, is diminished
or restricted when the application is renewed.
Here, the operative regulation does not literally provide for the “renewal”
of the section 216(c)(4) waiver application in removal proceedings. Rather,
8 C.F.R. § 1216.5(f) states that in such proceedings the alien “may seek
review” of the initial decision issued by the DHS. Nevertheless, the regulation
sets forth no definition of “review,” no explicit restriction on the evidence that
the Immigration Judge may consider in reviewing a section 216(c)(4) waiver
denial, and no other indicator of any intention to depart from the general
procedures for receiving evidence pertinent to the adjudication of both
removability and eligibility for relief, as described above.
We are mindful that, as a legal term, “review,” even de novo review,
customarily denotes an appellate-style review for error of the proceedings
conducted by an underlying adjudicative body, and such review is typically
confined to the evidentiary record presented for review on appeal. See, e.g.,
Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984) (“[A]ll evidence
which is pertinent to determinations made during deportation proceedings . . .
must be adduced in the hearing before the immigration judge. The Board
is an appellate body whose function is to review, not to create, a record.”
(footnote omitted)). But nothing in the statutory and regulatory provisions
defining the Immigration Judge’s powers and duties endows the Immigration
Judge with an appellate function. See section 240(b) of the Act; 8 C.F.R.
§§ 1003.10(b), 1240.1. To the contrary, the regulations only provide that the
Immigration Judge’s decisions are subject to appellate review. See 8 C.F.R.
§ 1003.10(c). It is the Immigration Judge’s function to create, not review,
a record. Given the Immigration Judge’s broad overall authority to conduct
removal proceedings, we conclude that he or she is presumed to have
jurisdiction to gather and receive evidence pertinent to an application
for relief from removal unless the Attorney General expressly withholdsCite as 25 I&N Dec. 589 (BIA 2011) Interim Decision #3726
2 We would reach the same conclusion were the DHS seeking to present evidence in removal
proceedings that was not previously submitted to or considered by the DHS outside of such
such jurisdiction or takes it away. See, e.g., Matter of Martinez-Montalvo,
24 I&N Dec. 778 (BIA 2009) (finding that Matter of Artigas, 23 I&N Dec.
99 (BIA 2001), was superseded by regulations restricting the jurisdiction
of Immigration Judges in the case of Cuban refugees seeking adjustment
In addition to the powers and duties of the Immigration Judge, we must
consider the rights and burdens of the respondent. A respondent in removal
proceedings has the statutory right to a reasonable opportunity to present
evidence on his or her own behalf. Section 240(b)(4)(B) of the Act;
see also 8 C.F.R. § 1240.10(a)(4) (2011). It is also an alien’s burden to prove
eligibility for any requested relief from removal. Section 240(c)(4)(A)
of the Act; 8 C.F.R. § 1240.8(d) (2011). Absent some specific provision that
prohibits the introduction of new evidence before the Immigration Judge,
we decline to potentially impair a respondent’s ability to satisfy this burden
of proof by limiting the right to present evidence on his or her behalf
in support of an application for a waiver under section 216(c)(4) of the Act.2
Further, it is generally not practicable or prudent for an Immigration Judge
to limit his or her review to the decisions made by the DHS prior to the
initiation of removal proceedings. As the Attorney General noted in providing
the Board with full de novo review over similar kinds of decisions made by the
former Immigration and Naturalization Service, “[T]hese decisions are made
on applications and interviews, and other information available to the Service.”
See Board of Immigration Appeals: Procedural Reforms To Improve Case
Management, 67 Fed. Reg. 54,878, 54,891 (Aug. 26, 2002) (Supplementary
Information). The DHS’s decisions are not transcribed, except perhaps in rare
instances. In contrast, the removal proceedings conducted by the Immigration
Judge are recorded and, if necessitated by an appeal, transcribed. See 8 C.F.R.
§ 1003.28 (2011). Therefore the administrative record generated by the DHS’s
denial of an application for an immigration benefit does not provide the same
reliability and reviewability as the record created and maintained by the
Immigration Judge in a removal proceeding. See 8 C.F.R. § 1003.36.
In view of the foregoing, the use in the governing regulation of the word
“review” does not suffice to persuade us that the promulgators of the
regulation intended to exempt section 216(c)(4) waiver applications from the
broadly applicable procedures for gathering and receiving evidence in removal
proceedings generally.Cite as 25 I&N Dec. 589 (BIA 2011) Interim Decision #3726
We conclude that during the course of review in removal proceedings
of an alien’s application under section 216(c)(4) of the Act for a waiver of the
general joint filing requirement for a petition to remove the conditions on his
or her lawful permanent resident status, the alien may introduce, and the
Immigration Judge should consider, material and relevant evidence without
regard to whether it was previously submitted or considered in proceedings
before the DHS. The scope of the “review” authority provided to the
Immigration Judge in 8 C.F.R. § 1216.5(f) is coterminous with his or her
ordinary powers and duties in removal proceedings. Accordingly, the
respondent’s appeal will be sustained and the record will be remanded to the
Immigration Judge for further proceedings.
ORDER: The appeal is sustained and the decision of the Immigration
Judge is vacated.
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.
Cite as 25 I&N Dec. 589 (BIA 2011) Interim Decision #3726