SANCHEZ-HERBERT, 26 I&N Dec. 43 (BIA 2012)

Cite as 26 I&N Dec. 43 (BIA 2012) Interim Decision #3771
Matter of Ramiro SANCHEZ-HERBERT, Respondent
Decided November 2, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Where an alien fails to appear for a hearing because he has departed the United States,
termination of the pending proceedings is not appropriate if the alien received proper notice
of the hearing and is removable as charged.
FOR RESPONDENT: Josue M. Martinez, Esquire, Boerne, Texas
BEFORE: Board Panel: MALPHRUS and CREPPY, Board Members; LIEBOWITZ,
Temporary Board Member.
MALPHRUS, Board Member:
In a decision dated February 3, 2011, an Immigration Judge granted
the respondent’s motion to terminate removal proceedings against the
respondent. The Department of Homeland Security (“DHS”) has appealed
from that decision. The appeal will be sustained, the removal proceedings will
be reinstated, and the record will be remanded to the Immigration Judge.
The respondent is a native and citizen of Mexico. On October 16, 2007,
the DHS filed a notice to appear with the Immigration Court charging that he
is inadmissible as an alien present in the United States without being admitted
or paroled under section 212(a)(6)(A)(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2006). The respondent appeared at a
master calendar hearing on November 27, 2007, and conceded removability
through counsel. The Immigration Judge granted the respondent a series of
continuances relating to an application for adjustment of status and other
At a master calendar hearing held on February 3, 2011, the respondent’s
counsel appeared without the respondent and moved to terminate the
proceedings, presenting evidence indicating that the respondent had voluntarily
returned to Mexico. The DHS moved for the Immigration Judge to proceed
with the hearing in absentia. The Immigration Judge granted the respondent’sCite as 26 I&N Dec. 43 (BIA 2012) Interim Decision #3771
motion to terminate proceedings, reasoning that she lacked jurisdiction over
the respondent because he was no longer in the United States.
The Immigration Judge erred in terminating proceedings on the grounds
that she did not have jurisdiction. The respondent’s departure from the
United States after he was placed in proceedings did not divest the
Immigration Judge of jurisdiction over the proceedings. Once a notice to
appear has been properly filed with the Immigration Court, jurisdiction vests.
See 8 C.F.R. §§ 1003.14(a), 1239.1(a) (2012). As long as the allegations and
charges stated in the notice to appear continue to be applicable, the alien
remains subject to removal. See Matter of Brown, 18 I&N Dec. 324, 325
(BIA 1982).
An alien does not need to be physically in the United States for
the Immigration Judge to retain jurisdiction over pending proceedings and to
conduct an in absentia hearing. See generally section 240(b)(5)(E) of the
Act, 8 U.S.C. § 1229a(b)(5)(E) (2006) (stating that the statutory provisions
regarding in absentia proceedings “shall apply to all aliens placed in [removal]
proceedings,” including aliens who remain in foreign territory contiguous to
the United States pending such proceedings); Matter of Luis, 22 I&N Dec.
747, 752-54 (BIA 1999) (finding that an alien’s departure from the
United States while the Government’s appeal was pending did not constitute
a constructive withdrawal of the appeal or necessarily moot the appeal). In
fact, the purpose of in absentia proceedings is to determine whether the DHS
can meet its burden to establish that the alien, who did not appear, received
proper notice and is removable as charged. See section 240(b)(5) of the Act;
8 C.F.R. § 1003.26 (2012). If the DHS meets its burden, the Immigration
Judge should issue an order of removal; if it cannot, the Immigration Judge
should terminate proceedings. See Matter of Lopez-Barrios, 20 I&N Dec. 203,
204 (BIA 1990).
In Matter of Brown, 18 I&N Dec. at 325, we held that an Immigration
Judge erred in terminating proceedings where the alien departed the
United States while proceedings were pending and then returned, concluding
that the alien “cannot compel the termination of deportation proceedings . . .
merely by effecting a departure and reentry.” Although Brown involved
deportation proceedings in a case where the alien returned to the United States
and appeared in court, the same institutional concerns are raised in the
respondent’s removal proceedings. We acknowledge the Immigration Judge’s
observation that the practical result in this case is that the respondent has,
in fact, departed the United States, regardless of whether he has been ordered
to do so. However, allowing an alien who leaves the country while in
proceedings to divest the Immigration Judge of jurisdiction over his case, or
to otherwise unilaterally compel termination of proceedings over the DHS’s
objection, would permit him to dictate the outcome of the proceedings andCite as 26 I&N Dec. 43 (BIA 2012) Interim Decision #3771
avoid the consequences of a formal order of removal. Such consequences
include, for example, inadmissibility to the United States after having
been ordered removed and ineligibility for certain forms of relief for a period
of 10 years. See sections 212(a)(9)(C)(i)(II), 240(b)(7) of the Act.
Once jurisdiction vests with the Immigration Judge, neither party can
compel the termination of proceedings without a proper reason for the
Immigration Judge to do so. See Matter of W-C-B-, 24 I&N Dec. 118, 122
(BIA 2007) (stating that once jurisdiction vests with an Immigration Judge, a
notice to appear cannot be cancelled by the DHS, which must instead move for
dismissal of the matter on the basis of a ground set forth in the regulations);
see also 8 C.F.R. § 239.2 (2012) (setting forth grounds on which the DHS may
cancel a notice to appear prior to jurisdiction vesting with the Immigration
Judge); 8 C.F.R. § 1239.2(c) (2012) (setting forth grounds on which the DHS
may move for dismissal); cf. Matter of Vizcarra-Delgadillo, 13 I&N Dec.
51 (BIA 1968) (holding that the Immigration Judge had authority to terminate
proceedings as “improvidently begun” in a case where termination was
reasonable and both parties agreed to the motion to dismiss). In this regard,
an Immigration Judge may terminate proceedings when the DHS cannot
sustain the charges or in other specific circumstances consistent with the
law and applicable regulations. See Matter of W-C-B-, 24 I&N Dec. 118
(discussing termination to permit reinstatement of a prior order of deportation);
Matter of Hidalgo, 24 I&N Dec. 103 (BIA 2007) (discussing when termination
is appropriate based on a pending naturalization application); cf. Matter of
Quintero, 18 I&N Dec. 348 (BIA 1982) (noting that termination is not a proper
means to delay an alien’s deportation).
There was no basis to terminate proceedings in this case. Instead, the
Immigration Judge should have granted the DHS’s request to proceed with an
in absentia hearing and, if the DHS met its burden to establish removability
based on the facts and the evidence, entered an order of removal. See 8 C.F.R.
§ 1003.26(c). See generally Matter of Singh, 21 I&N Dec. 427, 435 (BIA
1996) (“As long as the [DHS] chooses to prosecute the applicant’s proceedings
to a conclusion, the Immigration Judges and this Board must order the
applicant excluded and deported if the evidence supports such a finding.”).
For the reasons discussed above, we conclude that the Immigration Judge
erred in terminating proceedings. Accordingly, the DHS’s appeal will be
sustained and the record will be remanded for further proceedings.
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.