The Regulation At 8 C.F.R. § 1240.17 Applies Only To Those Placed In Expedited Removal Proceedings Whose Applications For Relief And Protection Were First Adjudicated By USCIS And Who Were Then Placed In Removal Proceedings Under INA §240.
On March 14, 2024, the Board of Immigration Appeals (BIA or Board) dismissed Respondent’s appeal in part and ordered the record remanded to the Immigration Judge (IJ) for further proceedings. The IJ had denied Respondent’s applications for withholding and CAT protection. In turn, Respondent appealed, contending that the IJ had committed error in excluding his late-filed evidence based on 8 C.F.R. § 1240.17.
On April 3, 2024, on its own motion, the Board amended the order in this case “to clarify issues regarding the procedural context of the decision.” On April 16, 2024, the BIA again, on DHS’ motion, amended the order, citing the same reason.
Respondent was placed into proceedings and charged with removability under INA §212(a)(7)(A)(i)(I) as an immigrant not in possession of valid immigration documentation; he conceded removability and applied for asylum, withholding of removal and CAT relief. The IJ then scheduled a merits hearing, setting a filing deadline of four (4) days before the trial, for the submission of evidence. Both parties timely complied but, on the day before the hearing, Respondent submitted a motion to accept an untimely filing. The IJ denied the motion and excluded the two (2) late-filed exhibits, marking them for identification only. She then conducted a competency inquiry because Respondent had been diagnosed with schizophrenia and found that he was competent to proceed.
Respondent testified that members of the MS-13 gang had confronted him at home in El Salvador because they believed a tattoo on his hand reflected allegiance to the rival 18th Steet gang. MS-13 members later approached him outside the house he shared with his godfather and cousin, forced him to strip so they could view his tattoos and inquired if he was related to “the fool,” which he took to be a reference to his cousin. They told Respondent they did not want to see him at home again, which he felt was a warning.
Based on this fact pattern, Respondent sought relief before the IJ. He based his withholding application on his relationship to his cousin, proposing membership in the particular social groups (PSGs) of “individuals with mental illness” and “individuals with tattoos who have a criminal record” to claim harm from gangs and the Salvadorian government. The court denied withholding on the ground Respondent had not proven past persecution or a clear probability of future persecution on account of a protected ground. She also denied his CAT request.
On appeal Respondent contended, as to the withholding denial, that he had presented valid PSGs and shown a clear probability of persecution on account of his membership therein. He also challenged the IJ’s denial of his motion to accept late-filed evidence. He further argued that his removal proceedings were governed by the regulation at 8 C.F.R. § 1240.17 and that the IJ had violated it by excluding the documents offered after the filing deadline.
The BIA began its analysis by parsing 8 C.F.R. § 1240.17. The rule, setting forth procedures for credible fear screening and consideration of asylum, withholding and CAT claims, added new regulations and went into effect in March 2022. These regulations allow for asylum applications submitted by those in expedited removal proceedings to first be adjudicated by USCIS. The opinion explained: “If USCIS denies the application, the asylum applicant may seek de novo review in removal proceedings before an Immigrant Judge.” Those covered by the regulation must be found to have a credible fear of persecution or torture and USCIS must subsequently “not grant” their application for asylum for them to be referred to the court.
Here, Respondent argued that § 1240.17 applied to his case and the IJ was bound by the regulations that allowed for 1) the consideration of late-filed documentary evidence if such evidence “could not reasonably have been obtained and presented before the applicable deadline through the exercise of due diligence” and 2) the lifting of any restriction on the consideration of late-filed submissions by one who “has exhibited indicia of mental incompetency.” Respondent claimed, in effect, that the IJ should have applied the regulation [8 C.F.R. § 1240.17(k)(6)] because the record contains indicia of incompetency due to his schizophrenia diagnosis. As such, the late-filed evidence should have been admitted.
The Board stated that these proceedings did not fall under § 1240.17 because, after entering the U.S., Respondent had received a negative credible fear determination, which the IJ reviewed and vacated. He was then placed into removal proceedings governed by INA §240; he was never placed into expedited removal proceedings and USCIS adjudicated none of his applications for relief. The BIA held that 8 C.F.R. § 1240.17 applies only to those placed in expedited removal proceedings whose applications for relief and protection were first adjudicated by USCIS and who were then placed into removal proceedings under §240. As a result, this regulation did not apply to Respondent’s removal proceedings.
As to Respondent’s applications for relief and protection from removal, the BIA found nothing in the record to establish that gang members targeted Respondent on account of his relation to his cousin. He had failed to show a clear probability of future persecution linked to a relationship to his family; the IJ had therefore not clearly erred “in finding that the gang members did not identify [Respondent’s] cousin or expressed an interest in [Respondent] because of his relationship to his cousin when they approached [Respondent] outside of his godfather’s house.” Respondent had thus not demonstrated the requisite nexus to his proposed family-based PSG, which was dispositive of his withholding claim on this basis.
Regarding Respondent’s two (2) remaining proposed PSGs, the decision ordered remand to the IJ for further development of the record. The IJ’s decision contained conflicting legal conclusions regarding the validity of the proposed PSGs and was otherwise incomplete as to the remaining elements of the withholding claim, which included feared future harm from both the government and private actors.
Also, concluded the Board, the IJ did not make specific factual findings regarding the evidence considered in support of her legal determinations. Specifically, her decision was unclear as to whether she considered the late-filed evidence in evaluating the applications for relief. In her decision, the IJ said that she had excluded the late-filed evidence but subsequently stated in her analysis that she had reviewed it and also referenced it in evaluating Respondent’s claim. Excluded evidence or evidence marked for identification only, admonished the opinion, “should not be considered in resolving issues or adjudicating applications.” Remand was also necessary so that the IJ could further address Respondent’s CAT claim, specifically the feared sources of torture beyond gang violence, including government actors.
In conclusion, the BIA found that Respondent was not included in the category of individuals covered by 8 C.F.R. § 1240.17 and therefore the regulatory paragraphs related to evidentiary filing deadlines did not apply to these proceedings. On remand, the IJ was ordered to consider the evidence previously submitted, and the parties were free to submit additional evidence according to deadlines set by the IJ. The appeal was dismissed in part and the record remanded for further proceedings. Matter of F-C-S-, 28 I&N Dec. 788 (BIA 2024).
