On August 31, 2020, in an opinion by newly-appointed Appellate Immigration Judge Stephanie Gorman, previously an Immigration Judge (IJ) with an extremely high asylum denial rate, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of one ordered removed after the IJ determined that he failed to timely file his applications for asylum, withholding and CAT relief. A native and citizen of Guatemala, Respondent had been detained by DHS and charged as removable per INA §§212(a)(6)(A)(i) and (7)(A)(i)(I) for being present in the U.S. without admission or parole and for failing to possess a valid entry document when he applied for admission.
While detained, Respondent appeared at a video conference hearing, indicated he would apply for the above-referenced forms of relief, and was given a Form I-589 to complete and submit by a certain date. The IJ also advised him that his opportunity to file would be waived if he failed to comply with the deadline and notified Respondent of his next hearing date. Respondent did not, however, file his application and after one week, the IJ issued an order finding that Respondent had waived his right to file for relief and ordered him removed. On appeal, Respondent argued that the IJ violated his right to due process by requiring him to file the application one month before his hearing, not giving him an opportunity to submit the I-589 at the hearing, and not letting him explain his reasons for missing the deadline; he also claimed he was denied a full and fair hearing because “his removal proceedings were conducted via a video conference at which he was unrepresented, detained, and had a Spanish translator”.
In beginning its analysis, the BIA noted both that one who faces removal is entitled to a full and fair removal hearing under the INA and Due Process Clause of the Fifth Amendment and that to establish that his due process rights have been violated, a respondent must prove that there was a deficiency or violation and that he was prejudiced by it. As to the waiver of the chance to apply for relief, the decision first cited to 8 CFR §1003.31(c) for the rule that when an application is not filed within the time set by the IJ, the opportunity to file is deemed waived. Additionally, the Board stated, Respondent never explained his failure to comply with the deadline or “identified any difficulties he may have encountered that prevented his compliance.” Once the deadline passed and the IJ issued her decision, concluded the opinion, Respondent could have filed a motion to reconsider the pretermission of his application, attaching a completed application and explaining his untimely filing or filed a motion to reopen. The decision reiterated that Respondent had never provided a reasonable explanation to the IJ or BIA for missing the deadline and held that he had waived his right to apply for relief from removal. The Board was also unpersuaded by Respondent’s claim that his video conference hearing, at which he was unrepresented, denied him his due process right to a full and fair hearing. One who contends that his video removal proceeding violated due process has the burden to show that he was prejudiced and denied a fair hearing. Here, Respondent “has not clearly explained how having his hearing via video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him”; the BIA thus held he had not met his burden. Accordingly, the appeal was dismissed. Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020).