On May 8, 2020, the Board of Immigration Appeals (BIA or Board), in a case where the respondent was pro se, and supplemental briefs were received from DHS and amici curiae, but the Respondent filed no response to the government’s appeal or the BIA’s request for a supplemental brief, sustained the appeal, reinstated removal proceedings and remanded the record to the Immigration Judge (IJ).
A CBP officer had encountered and arrested Respondent a quarter-mile north of the United States border with Mexico. Thereafter, Respondent admitted he was a native and citizen of Honduras who had entered the U.S. without inspection as a member of a migrant caravan; he was served with a Notice to Appear (NTA) that stated he was being placed in removal proceedings under INA §240 and alleged: he was not a citizen or national of the U.S.; he is a Honduran citizen; he entered the U.S. without inspection, and, he is not in possession of a valid entry document. The NTA charged Respondent with removability under INA §212(a)(7)(A)(i)(I) as one not in possession on a valid entry document and contained his signature acknowledging personal service. The Notice also informed his of the date, time, and place of his removal hearing and listed his address. However, as the Board noted, “the DHS did not check any of the three alien classification boxes on the notice to appear to indicate whether he was alleged to be (1) an arriving alien, (2) an alien present in the United States who has not been admitted or paroled, or (3) an alien who has been admitted to the United States but is removable for reasons stated elsewhere on the notice to appear.”
Additionally, DHS provided Respondent with a Migrant Protection Protocols (MPP) document in English and Spanish, instructing him to arrive at a specific location at the border at a certain date and time so that he could be transported to the Immigration Court. Following service of the NTA and “MPP Sheet,” Respondent was returned to Mexico. He did not appear in court. During the hearing, DHS requested the IJ to issue an in absentia order of removal per INA §240(b)(5)(A); instead, the IJ terminated removal proceedings on the basis that the NTA was defective, expressing a concern that Respondent “was not given proper notice of how to attend his hearing.”
In beginning its analysis, the BIA noted that, subsequent to the IJ’s decision, the Board had issued Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), holding that where DHS returns an applicant to Mexico to await a removal hearing per the MPP and provides him or her with sufficient notice of that hearing, an IJ “should enter an in absentia order of removal if the respondent fails to appear and is removable.” The decision found that Respondent had received sufficient notice of the hearing per Rodriguez and that there was “no indication in the record that he did not understand the instructions for appearing at the hearing or that he made any attempt to appear.” Moreover, per CBP, Respondent knew he would be returned to Mexico and should have not attempted to enter the U.S. until he returned to the appropriate location on the date of his hearing. Additionally, as the IJ had acknowledged that many other applicants who were returned to Mexico under the MPP attended their hearings, the BIA concluded that termination of Respondent’s removal proceedings on the basis that he did not receive adequate notice “is foreclosed by our decision in Matter of J.J. Rodriguez.”
As to the sufficiency of the NTA, the opinion first distinguished Rogriguez, noting that in the prior case the applicant had applied for admission at a designated port of arrival; that Respondent’s NTA did not indicate with a checked box whether he was arriving, present without admission, or admitted but removable; and that Rodriguez had not addressed whether the NTA sufficiently informed one of the type of proceedings and the grounds of removability. Because of these distinctions, the Board had requested supplemental briefing regarding 1) whether under the MPP program, DHS may return an applicant to contiguous territory proceedings if the NTA does not allege that the person is arriving or entered the U.S. via a port of entry (POE) or by interdiction and 2) whether DHS has the statutory authority to apply the MPP program to those who did not present themselves for inspection at a POE. The BIA went on to state that the statutory and regulatory requirements for the contents of an NTA include: A) the nature of the proceedings; B) the legal authority under which they are conducted; C) the acts on conduct alleged to violate the law; and, D) the charges against the respondent and the statutory provisions alleged to have been violated.
Amici argued that without the checked box, an NTA does not meet the statutory and regulatory requirements to advise on the nature of the proceedings. However, countered the opinion, neither the Act nor the regulation requires DHS to check one of the 3 classifications boxes, “so long as the required information is provided.” The Board noted that it had previously held, in Matter of Chery and Hason, 15 I&N Dec. 380 (BIA 1975), that an Order to Show Cause (the predecessor form to an NTA) issued pursuant to the former regulations provided adequate information because it was sufficiently explicit to inform a respondent as to “what actions were in violation of the law, and what law he violated, so as to enable him to mount a defense.” The BIA’s review of Respondent’s NTA satisfied the panel “that it sufficiently enabled him to mount a defense to the inadmissibility charge against him” and placed him “on notice of the nature of the proceedings, advising him that he was being placed [i]n removal proceedings…as opposed to some other immigration proceedings, such as expedited removal…” The opinion went on to note that Respondent’s NTA described his right to representation, the conduct of the hearing and the consequences of nonappearance. Because it also stated the charge against him, the BIA concluded that the NTA placed Respondent “on notice of all the information required by section 239(a)(1)(A)-(D) of the Act and 8 C.F.R. §1003.15(b)(1)-(4).”
In response to amici’s contention that where no status box is checked, an IJ may not have jurisdiction to adjudicate a potential application for adjustment of status (because the court generally cannot consider such an application filed by an arriving applicant), the decision termed such concerns “speculative”; there is no indication, stated the Board, that Respondent is the beneficiary of an approved – or pending – visa petition. Additionally, there is no statutory or regulatory mandate that an NTA set forth one’s eligibility “for every form of relief from removal for which he might be eligible.”
As to the burden of proof of issue, the Board concluded that the allegations and charge in the NTA made clear to Respondent that he is charged with inadmissibility under INA §212(a) and as an applicant for admission “he bears the burden of proof as a matter of law. The fact that no box was checked, found the BIA, did not prevent the IJ from evaluating the factual allegations and DHS’s evidence; in fact, the Form I-213 alone may support a conclusion that Respondent is inadmissible and subject to removal as an immigrant who, at the time he applied for admission, was not in possession of a valid entry document. Thus, as Respondent failed to appear, DHS has “potentially proffered clear, unequivocal, and convincing evidence” that he is subject to removal as charged.
As to Respondent’s return to contiguous foreign territory per INA §235(b)(2)(C), the Board noted that Congress has authorized the return of one who arrives on land from such territory to that place pending a proceeding under §240. And, once such an applicant is placed into §240 removal proceedings, he or she “is entitled to the due process rights afforded in a removal proceeding”, even if DHS returns the applicant to Mexico under the MPP program. Further, concluded the decision, the provisions governing the entry of in absentia orders of removal apply equally to all respondents placed into proceedings, even one “who remains in a contiguous foreign territory” per §235 (b)(2)(C). One does not have to be physically in the U.S. for the IJ to retain jurisdiction over in absentia proceedings; once DHS elects to prosecute a removal proceeding to its conclusion, held the Board, an IJ is obligated to order the respondent’s removal “if the evidence supports a finding of removability on the ground charged and the respondent has not established eligibility for relief.” The appeal was sustained, the IJ’s decision vacated, and removal proceedings reinstated with the record remanded to the IJ. Matter of Herrera-Vasquez, 27 I&N Dec. 825 (BIA 2020).