25 I. & N. Dec. 589
BIA2011Background
- Herrera-Del Orden, a conditional permanent resident, seeks review of DHS 216(c)(4) waiver denial in removal proceedings.
- The DHS denied the waiver due to insufficient evidence and treated the petition as abandoned.
- The IJ limited review to evidence previously submitted to DHS and denied new evidence.
- The DHS decision initiated removal proceedings with an I-862 and a notice to appear.
- The Board later held that new, relevant evidence could be considered during the removal proceedings’ review.
- The record is remanded for further proceedings consistent with the Board’s decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of review for 216(c)(4) waiver review | Herrera-Del Orden argues for de novo consideration of all relevant evidence. | DHS argues review is limited to errors in the DHS decision. | Ct holds broad, de novo-like review within IJ’s removal proceedings authority. |
| Whether IJ may admit new evidence not previously presented to DHS | Herrera-Del Orden contends new evidence should be considered. | DHS contends new evidence should not be admitted if not previously submitted. | Record remanded; IJ may consider material and relevant new evidence. |
Key Cases Cited
- Matter of Fedorenko, 19 I&N Dec. 57 (BIA 1984) (deportation records and evidentiary considerations in review)
- Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009) (jurisdiction and record creation in removal proceedings)
- Matter of Artigas, 23 I&N Dec. 99 (BIA 2001) (superseded by later rules on Cuban refugees' adjustment proceedings)
- Matter of K-A-, 23 I&N Dec. 661 (BIA 2004) (broad authority of IJ in removal proceedings)