On July 14, 2020, the Board of Immigration Appeals (BIA or Board) denied a request for oral argument and dismissed the appeal of a decision by the Immigration Judge (IJ) denying Respondent’s applications for asylum and withholding of removal; she also requested termination of proceedings.
Respondent had been served a Notice to Appear (NTA), charging her with inadmissibility under INA §212(a)(7)(A)(i) as an immigrant not in possession of a valid entry document, alleging that she had entered the U.S. at or near the Otay Mesa, California port of entry (POE); the Form I-213 record stated that she had been apprehended that same day 20 yards north of the southern border and 3 miles west of the POE. DHS returned Respondent to Mexico to await removal proceedings under the Migrant Protection Protocols (MPP). She subsequently appeared without counsel at the POE for her removal hearing and was served a Form I-261 notifying her of additional charges of inadmissibility, amending the NTA to categorize Respondent as an “arriving alien” paroled into the U.S. to attend her removal proceedings. The IJ sustained the charge of inadmissibility, concluding that Respondent had failed to establish eligibility for relief from removal.
Represented by counsel on appeal, Respondent contended that proceedings should have been terminated, arguing that her return to Mexico under the MPP was unlawful because only “arriving aliens” may be returned to contiguous countries to await proceedings under INA §235(b)(2)(C). She also asserted that DHS misclassified her as an “arriving alien” after her apprehension “inside the United States between ports of entry.” In its opinion, the BIA initially noted its conclusion that termination was inappropriate, as an IJ may only terminate proceedings under specific circumstances set forth in the regulations and where the charges of removability are not sustained.
In beginning its analysis of inadmissibility under §212(a)(7)(A)(i), the Board cited to recent appellate case law in the Ninth Circuit, in whose jurisdiction this matter arose, holding that this ground had 3 elements: the respondent 1) is an immigrant 2) who at the time of application for admission 3) lacks a valid entry document. The opinion stated that Respondent had “conceded alienage” in front of the IJ and found “nothing in the record to indicate that she is not properly classified as an ‘immigrant’ or that she possessed a valid entry document.” Further, per INA §235(a)(1), one present in the U.S. who has not been admitted or who arrived, whether or not at a designated POE, shall be deemed “an applicant for admission.” Given that Respondent did not dispute that she met the definition of an “applicant for admission,” the BIA concluded that the IJ properly found her to be inadmissible under §212(a)(7)(A)(i). As to her contention that termination was proper because DHS did not at first check the box on the NTA classifying Respondent as an “arriving alien” at the time of service so she thus did not receive proper notice of proceedings, the Board found this argument foreclosed by Matter of Herrera-Vazquez, 27 I&N Dec.825 (BIA 2020), which held that an NTA “similar to” Respondent’s “provided proper notice of the nature of the proceedings and the charge of inadmissibility.”
As to the authority to return an applicant to Mexico pending removal proceedings, the decision first stated that DHS’s statutory authority to apply the MPP is derived from INA 235 (b)(2)(C), also noting that §235(b)(2)(A) covers one “who is an applicant for admission”, such as Respondent if he or she “is not clearly and beyond a doubt entitled to be admitted.” Additionally, the Board noted that both §235(a)(1), which defines an “applicant for admission”, and §235(b)(2)C), which provides for the return of noncitizens to contiguous countries, specify that the statutory provision has effect whether or not the respondent arrives at a designated POE.
Yet, concluded the BIA, there are some restrictions on who can be moved to Mexico under the MPP, as the “use of the present progressive tense ‘arriving’, rather than the past tense ‘arrived’, implies some temporal or geographical limit, so that [those], like the respondent, who are encountered near the border may be subject to the contiguous territory provision.” Therefore, here the Board held it only needed to decide whether Respondent, “who was apprehended just inside the border upon crossing into the United States,” meets the statutory definition of one who may be placed into the MPP; under these facts, she was properly considered to be “arriving.”
The BIA also did not agree with Respondent’s contention that DHS’s authority to return applicants to contiguous countries pending proceedings should be read narrowly. First, an “arriving alien” has historically been a non-citizen who appeared at a POE. Congress clearly broadened the term’s scope by enacting §235(b)(2)(C) in 1996 and having it include those who enter “whether or not at a designated port of arrival.” Similarly, because 235(b)(2)(C) is limited to people “arriving on land”, it describes a class of applicants narrower than the regulation which, stated the Board, includes those arriving at POE generally, which in turn supports the interpretation that this section of the Act “was not intended to be limited to the definition of “arriving aliens” in 8 C.F.R.§1001.1(q).”
Second, even if §1001.1(q) is “implicated,” concluded the decision, it is unclear whether 8 C.F.R. §§235.3(d) and 1235(d) prevents DHS from returning other entrants to Mexico, consistent with its “broader statutory authority”; the Board noted that the regulations are silent as to whether those who enter without inspection between POEs may be returned to contiguous countries and was thus reluctant to read the regulation as foreclosing DHS “from taking action that the statute clearly gives it the authority and discretion to carry out…” Because of this ambiguity, the BIA declined to find that the legacy-INS’s reference to historic agency practices in older regulations now limits DHS’s current practices, “without an explicit statement to that effect.” The Board thus found that the regulations do not preclude DHS from applying the MPP to those apprehended between POEs and therefore held that, per §235(b)(2)(C), one who arrives on land from a contiguous foreign territory may be returned to that country under the MPP, regardless of whether he or she arrives at or between a designated POE.
As to Respondent’s argument that in improperly classifying her as an “arriving alien”, DHS deprived her of her constitutional, statutory, and regulatory rights, including her right to apply for asylum, the decision found that it is not necessary to determine whether the classification is proper, as Respondent had not proven she was prejudiced by being so classified or by her return to Mexico. The BIA reasoned that she had conceded non-citizenship before the IJ, and there was no indication she was in the U.S. lawfully per a prior admission. Similarly, Respondent’s applications for asylum, withholding, and CAT relief were all denied on the merits by the IJ, and she had an opportunity to appeal, so she had not been “deprived of due process rights in this regard.”
Respondent’s contention that, as a practical matter, those subject to the MPP lack adequate access to counsel was also dismissed. Applicants in proceedings have a right to counsel of their choice at no expense to the government and while many may face “practical impediments” to retaining attorneys, because they may be detained or lack funds, such circumstances “do not alone constitute a due process violation.” The opinion noted that Respondent stated at her initial hearing that she wished to represent herself; however, the IJ still provided her with a list of free legal services and advised her to hire a lawyer. She appeared alone at the resumed hearing and was again asked by the IJ if she wanted to represent herself, to which she said, “Yes.” Under these circumstances, concluded the Board, Respondent had waived the right to counsel, received a full and fair hearing, and had been allowed to apply for relief from removal. There was, therefore, no basis to hold that the outcome of these proceedings had been impacted by the “arriving alien” classification or by Respondent’s return to Mexico under the MPP.
As to Respondent’s applications for asylum and withholding, she had received one threatening call in El Salvador and left the country about 9 days later; she later learned that a threatening note had been left at her home. The BIA affirmed the IJ’s order denying relief because the harm Respondent suffered in El Salvador, “considered in the aggregate, does not rise to the level of past persecution.” In the Ninth Circuit, stated the opinion, death threats alone constitute persecution in only a small number of cases and only when “the threats are so menacing as to cause significant actual suffering or harm.” The two threats here were not “sufficiently severe” so as to rise to the level of “persecution”, particularly as Respondent was unaware of one before she departed.
The appeal also claimed that the IJ erred in not considering that she was also “watched by gang members” in El Salvador. However, Respondent did not know why or show any connection to the threats she received. Remand for further testimony would not alter the outcome of the IJ’s determination. Further, her assertion of IJ error in failing to consider that gang member came to her home after her departure from El Salvador “does not relate to past persecution” and her claim that the threatening call deprived her of liberty and the ability to practice her religion and caused her severe economic deprivation is unpersuasive. Because Respondent did not establish past persecution, she was not afforded a rebuttable presumption of a well-founded fear of persecution if returned. The Board thus affirmed the IJ’s holding that she had not “met her burden to establish that authorities of the Salvadorean Government are unable or unwilling to control the private actors she fears.” Matter Of M-D-C-V-, 28 I&N Dec. 18 (BIA 2020).
