BIA Holds That DHS Has Authority To File A Motion to Reconsider In Immigration Court And An Applicant In Withholding Of Removal-Only Proceedings Who Is Subject To A Reinstated Order of Removal Under INA §241 (a)(5) Is Ineligible for Asylum.

On April 27, 2018, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal of the denial by an Immigration Judge (IJ) of a Department motion to reconsider (MTR) regarding a grant of asylum to respondent. The DHS motion had argued that the IJ’s grant was impermissible because respondent was subject to a reinstated order of removal per INA §241 (a)(5). The IJ had declined to address the motion’s merits, ruling that DHS had no ability to file a MTR and that the regulation which allows the Court to accept an MTR from DHS is inconsistent with the Act. The IJ, therefore, found that DHS does not have the statutory authority to file such as motion; in the alternative, the IJ held the DHS motion barred by res judicata.

At the beginning of its analysis, the BIA noted that an IJ has no authority to disregard the regulations which give DHS authority to seek reconsideration and reopening (8 C.F.R. § 1003.23 (b)(1)), which “have the force and effect of law.” Further, the express limitations on a respondent’s right to file motions “do not necessarily indicate that only the [respondent] has that right,” citing to INA §240 (c)(6)(A); the Board thus found the language of this statutory section to be ambiguous.

The BIA next found that the legislative history does not support the IJ’s conclusion that §240 (c)(6) was intended to provide rights solely to respondents while limiting DHS’s ability to file motions: after publications of the interim regulations, several commenters had argued that the time and numerical limitation on motion filings apply to all parties. Yet the Legacy-INS had rejected that argument, concluding that Congress had imposed limits on motions to reopen where none had existed before and imposed those limits only on respondents. As a result, stated the Board, the time and number limits do not apply to Government motions. As such, the BIA found “no logical rationale for concluding that only one party is permitted to seek the correction of a defective decision” and held that the INA does not preclude DHS from filing an MTR before the IJ. Additionally, because withholding of removal-only proceedings are subject to a timely MTR, “the administrative process provided by the regulations has not been completed, so the doctrine of res judicata does not apply.”

Finally, the BIA held that the IJ erred in granting asylum to respondent, who is subject to a reinstated order of removal under INA §241 (a)(5) and is thus properly placed in withholding of removal-only proceedings. Because this is clear from the applicable regulations (8 C.F.R. §1208.31 (e)), respondent “is ineligible for asylum in these proceedings.” The IJ’s order granting asylum was thus vacated, the record remanded to consider respondent’s requests for relief, and the appeal sustained. Matter of L-M-P-, 27I&N Dec. 265 (BIA 2018).

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