On January 31, 2020, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal, reinstated removal proceedings, and remanded the record for further proceedings. Respondent had applied for admission to the U.S. at the San Ysidro, California port of entry (POE) at the Mexican border. In April 2019, DHS served him with a Notice to Appear (NTA), charging him as removable under INA §212(a)(7)(A)(i)(I) as one who does not possess valid entry documents. The NTA listed the date, time, and place of Respondent’s hearing, as well as his address in Mexico; DHS also provided him with a “Migrant Protection Protocols” (MPP) information sheet, with a Spanish-language copy, instructing Respondent to arrive at a specific location at the San Ysidro POE at 9:00 am on the morning of his hearing so he could be transported to the Immigration Court. DHS returned Respondent to Mexico per the MPP to await his hearing. He did not appear and DHS requested the Immigration Judge (IJ) to issue an in absentia order of removal; citing due process concerns, the IJ concluded that Respondent’s notice was insufficient and terminated the proceeding without prejudice (and without allowing the government to submit evidence of removability). DHS appealed.
The BIA began its analysis by quoting the well-settled rule that an IJ may only terminate removal proceedings under special circumstances set forth in the regulations, where the charges of removability have not been sustained. As such, the Board concluded that the IJ had erred in terminating proceedings. The decision noted that, under the MPP, DHS has the discretion to return “certain foreign individuals” entering or seeking admission to the U.S. from Mexico – illegally or without proper documentation – to Mexico for the duration of their immigration proceedings. Additionally, the NTA had been personally served so Respondent had notice of the time and place of the hearing, had been informed of the charges against him, and warned of the consequences of failing to appear.
The BIA also pointed out that DHS had given Respondent the MPP sheets but the IJ had “expressed concern” that Respondent had not understood the instructions contained therein; the opinion concluded, “there is no adequate basis to assume that he did not.” The Board went on to note that the MPP sheet contained Respondent’s signature and there is no requirement that one placed in immigration proceedings be provided with an NTA “or any other document” in his or her native language. Thus, held the decision, where, as here, DHS returns an applicant to Mexico to await an immigration hearing pursuant to the MPP and provides him or her with sufficient notice of that hearing, that IJ should enter an in absentia order of removal if the respondent fails to appear in court.
Finding that termination of the proceedings had not been warranted because there was no legal basis to do so, and that the IJ’s failure to allow the government to present evidence as to Respondent’s removability ran counter to his conclusion that DHS had not sustained the charges, the BIA reinstated proceedings and remanded the record, holding that the IJ should have granted DHS’s request to proceed in absentia. The Board ordered that, on remand, if DHS establishes Respondent’s removability “based on the facts and the evidence”, the IJ should enter an order of removal. Thus, the appeal was sustained, the IJ’s decision vacated, proceedings reinstated, and the record remanded for further proceedings. Matter of Rodriguez Rodrguez, 27 I&N Dec.762 (BIA 2020).
