Cite as 25 I&N Dec. 264 (BIA 2010) Interim Decision #3684
1 The respondent has five arrests, occurring in 1992, 1994, 1999, 2008, and 2009. His
convictions stemmed from his 1999 arrest, pursuant to which he pled to disorderly conduct,
assault and battery on a police officer, resisting arrest, and assault and battery.
Matter of Jesus INTERIANO-ROSA, Respondent
File A094 098 765 – Boston, Massachusetts
Decided June 21, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
When an application for relief is timely filed but supporting documents are not submitted
within the time established, the Immigration Judge may deem the opportunity to file the
documents to be waived but may not deem the application itself abandoned.
FOR RESPONDENT: L. Manuel Macias, Esquire, East Boston, Massachusetts
BEFORE: Board Panel: MILLER, MALPHRUS, and MULLANE, Board Members.
MALPHRUS, Board Member:
In a decision dated December 1, 2009, the Immigration Judge deemed
the respondent to have abandoned his applications for special rule cancellation
of removal under section 203(b) of the Nicaraguan Adjustment and
Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2160,
2193, 2198 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997)
(“NACARA”), and, alternatively, for voluntary departure. The respondent has
appealed from that decision. The Department of Homeland Security has not
filed a brief in opposition. The appeal will be sustained, and the record will
be remanded to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
At a September 15, 2009, master calendar hearing, the Immigration Judge
directed the respondent to file his applications for relief by September 29,
2009. The Immigration Judge also directed the respondent to file copies of all
docket sheets and police reports relating to any and all arrests and convictions.1
The Immigration Judge instructed that if the respondent’s counsel was unable
to obtain any police reports or docket sheets because of the remoteness in timeCite as 25 I&N Dec. 264 (BIA 2010) Interim Decision #3684
of some of the arrests, he should submit a declaration describing his efforts and
inability to obtain them. Finally, the Immigration Judge asked counsel
to submit a brief addressing the respondent’s eligibility for NACARA relief.
The respondent timely filed his application for special rule cancellation and
numerous supporting documents. The respondent’s submission included
a declaration describing, among other things, four of his arrests. It included
rap sheets, docket sheets from all five of his arrests, and police reports from his
three most recent arrests. The police reports from his earliest two arrests,
which occurred in 1992 and 1994, were not in the filing. The respondent’s
counsel did not submit a declaration explaining why he was unable to obtain
the two oldest police reports, and he did not file a brief addressing the
respondent’s eligibility for NACARA relief.
At the December 1, 2009, hearing, counsel explained that he was unable
to obtain the oldest two police reports because they were no longer available
from either the court system or the police department. The Immigration Judge
held that the respondent abandoned his applications for relief because he failed
to comply with the directives given at the previous hearing.
On appeal the respondent argues that the Immigration Judge erred
in deeming his applications for relief abandoned. This appeal presents
a question of law, which we review de novo. See Matter of Almanza, 24 I&N
Dec. 771, 774 (BIA 2009); 8 C.F.R. § 1003.1(d)(3)(ii) (2010).
Immigration Judges have broad discretion to conduct and control
immigration proceedings and to admit and consider relevant and probative
evidence. See section 240(b)(1) of the Immigration and Nationality Act,
8 U.S.C. § 1229a(b)(1) (2006); 8 C.F.R. §§ 1003.36, 1240.1(c), 1240.7(a)
(2010); see also, e.g., Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009). In this
regard, Immigration Judges have authority to set filing deadlines for
applications and related documents. 8 C.F.R. § 1003.31(c) (2010); see also
Immigration Court Practice Manual, §§ 3.1(b)(i)(B), (b)(ii)(B), at 33 (June 20,
(“For . . . hearings involving detained aliens, filing deadlines are as specified
by the Immigration Court.”). An application or document that is not filed
within the time established by the Immigration Judge may be deemed waived.
8 C.F.R. § 1003.31(c); see also Arrellano-Hernandez v. Holder, 564 F.3d 906,
910-11 (8th Cir. 2009) (upholding the Immigration Judge’s decision to deem
an application waived because it was not filed within the deadline); Hassan
v. Gonzales, 403 F.3d 429, 435-36 (6th Cir. 2005) (upholding the Immigration
Judge’s decision not to consider corroborating evidence submitted after the
filing deadline); Matter of R-R-, 20 I&N Dec. 547, 549 (BIA 1992) (statingCite as 25 I&N Dec. 264 (BIA 2010) Interim Decision #3684
that applications for benefits under the Act are properly denied as abandoned
when an alien fails to timely file them).
In this case, the respondent’s application was timely filed. The only
documents not filed were two police reports, an explanation for not obtaining
those police reports, and the requested brief. Under these circumstances, the
proper course of action for the Immigration Judge would have been to deem
the respondent’s opportunity to file these documents waived and to determine
what effect the failure to present them had on his ability to meet his burden
of establishing that he is eligible for the relief sought and that he merits
a favorable exercise of discretion. See section 240(c)(4)(A) of the Act;
8 C.F.R. § 1240.8(d) (2010). Deeming the application itself abandoned
was not an appropriate disposition by the Immigration Judge. See
Casares-Castellon v. Holder, 603 F.3d 1111, 1113 (9th Cir. 2010) (holding
that the plain language of 8 C.F.R. § 1003.31(c) does not permit deeming
a timely filed application abandoned for failure to file supplemental documents
within a specified time).
In immigration proceedings, it is important for counsel to comply
with reasonable requests from the Immigration Judge. The belief of the
respondent’s counsel that he did not need to comply with the Immigration
Judge’s request to file a brief because he viewed the issue as “straightforward”
is not a legitimate excuse for failing to comply. The respondent has the burden
to establish eligibility for the relief he seeks, and the failure to file requested
briefs or other documents does not advance the claim. However, the
consequence should not be to deem the applications for relief to be abandoned.
The respondent should have been given an opportunity to proceed to a merits
hearing with his testimony and the documentary evidence that was properly
For these reasons, the respondent’s appeal will be sustained and the record
will be remanded for further proceedings, including a hearing on the merits
of his applications for NACARA relief and voluntary departure. We express
no opinion regarding the merits of the respondent’s applications. See Matter
of L-O-G-, 21 I&N Dec. 413, 422 (BIA 1996).
ORDER: The appeal is sustained.
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. 264 (BIA 2010) Interim Decision #3684