Cite as 24 I&N Dec. 446 (BIA 2008) Interim Decision #3598
Matter of Devon Bercham KELLY, Respondent
File A97 530 863 – Los Fresnos
Decided as amended February 5, 20081
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) If an Immigration Judge includes an attachment to a decision, particular care must be
taken to insure that a complete record is preserved.
(2) An attachment to an Immigration Judge’s oral decision should be individualized with
the respondent’s name, the alien registration number, and the date of the decision, and it
should be appended to the written memorandum summarizing the oral decision, which
should reflect that there is an attachment.
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Lessa N. Whatmough, Assistant
Chief Counsel
BEFORE: Board Panel: HOLMES, GRANT, and MILLER, Board Members.
HOLMES, Board Member:
ORDER:
PER CURIAM. The respondent has appealed from the July 24, 2007,
decision of the Immigration Judge in his case. The transcribed oral decision
of the Immigration Judge in the record before us is incomplete. The decision
includes six captioned subheadings, including those pertinent to the relevant
statements of law, each of which states, “Please see attachment ‘A,’ included
in the Court’s file.” However, the attachment, which was not referenced on
the record during the course of the proceedings, is not in the record before us.
Accordingly, the record is remanded to the Immigration Judge for inclusion of
the complete decision in this case and for certification of the record to the
Board thereafter.
On our own motion, we amend the November 27, 2007, order in this case. The amended
decision makes editorial changes consistent with our designation of the case as a precedent.
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1Cite as 24 I&N Dec. 446 (BIA 2008) Interim Decision #3598
We note that including an “attachment” to an Immigration Judge’s oral or
written decision, rather than rendering an individual decision in its entirety, is
not a specifically proscribed practice. However, if utilized, particular care
must be taken to insure that a complete record is preserved. Because such
“attachments” tend to have a history of being amended over time, as, for
example, when changes of applicable law occur, the best practice in any case
in which an attachment is used is to individualize the document with the
respondent’s name, the alien registration number, and the date of the decision.
This insures that in cases such as this one, where the document either was not
originally included in the record, through error or oversight, or was separated
from the record at some point, there can be certainty that the correct
attachment is ultimately associated with the file. The written memorandum
summarizing the oral decision that is provided to the parties at the time the
decision is entered should reflect that there is an attachment, and the
attachment should be appended to that document for ease of identification and
location in the record.
Further, the Immigration Judge should make clear on the record at the time
of the oral decision that his or her intent is to utilize an attachment, rather than
to orally recite the entirety of the decision, and a copy of the relevant
document should be provided to the parties. The parties should be given the
opportunity to make any objections to the practice. Finally, it is the
Immigration Judge’s responsibility to insure that the decision in the record is
complete. See 8 C.F.R. §§ 1003.36, 1003.37 (2007); see also Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). While failure to comply with all these
procedures will likely be harmless error in many cases, there may be
circumstances where such is not the case. Therefore, as previously noted, an
Immigration Judge must take particular care to insure that the entire decision
is preserved for the record.
447