E-R-M- & L-R-M, 25 I. & N. Dec. 520

Matter of E-R-M- & L-R-M- involves arriving Cuban aliens facing removal proceedings under 240 INA; DHS sought reinstatement of proceedings after an Immigration Judge terminated them on jurisdictional grounds.
Immigration Judge had held that arriving inadmissible aliens must be placed in expedited removal under §235(b)(1)(A)(i) and that he lacked jurisdiction over proceedings.
DHS filed a Notice to Appear under §240; charges were based on inadmissibility under §212(a)(7)(A)(i)(I) for aliens lacking valid entry documents.
The Immigration Judge held only §235(b)(1)(F) exempted some aliens from expedited removal, and Cuba-arriving respondents did not qualify at land border under 8 C.F.R. §1235.3(b)(i).
DHS argued §235(b)(1)(A)(i) is discretionary (may) rather than mandatory (shall); Judge disagreed, then Board adopted a different view.
Board held DHS may place aliens in §240 removal proceedings despite potential eligibility for Cuban Adjustment Act relief, and that IJ jurisdiction over §240 remains notwithstanding lack of jurisdiction over Cuban Adjustment Act applications.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §235(b)(1)(A)(i) requires expedited removal	DHS—shall require expedited removal	Board—DHS has discretion to place in §240	DHS may place in §240; not mandatory expedited removal
Whether §235(b)(2)(B) excludes but does not bar §240 proceedings	Citizens of Cuba may be placed in §240 proceedings	§235(b)(2)(B) excludes some aliens from §240	Section 235(b)(2)(B) excludes three groups from §240 but does not bar §240 for arriving aliens
Whether IJ jurisdiction over removal proceedings is negated by Cuban Adjustment Act	Respondents claim no §240 jurisdiction due to Cuban Adjustment Act	IJ lacks adjustment jurisdiction but §240 removal jurisdiction remains	Lack of adjustment jurisdiction does not negate §240 removal jurisdiction
Role of prosecutorial discretion in immigration charging decisions	DHS may choose §240 charging; discretion mirrors criminal context		Executive prosecutorial discretion applies to immigration charging decisions
Relief options after reinstatement of §240 proceedings	Respondents may pursue Cuban Adjustment Act relief		Record remanded; respondents may pursue relief via USCIS; §240 proceedings reinstated

United States v. Batchelder, 442 U.S. 114 (1981) (prosecutor may choose among offenses; charging decisions reserved to prosecutor)
United States v. Armstrong, 517 U.S. 456 (1996) (prosecutorial discretion to enforce laws rests with executive branch)
United States v. Nixon, 418 U.S. 683 (1974) (Executive Branch has exclusive authority to decide whether to prosecute)